The time an employee is contractually required to sleep on-site does not count towards national minimum wage (NMW) calculations, the UK Supreme Court has held in a landmark decision that will be greeted with relief by social care employers while also putting pressure on the government to increase funding for the hard-hit care sector.
In a much-anticipated ruling, the UK’s highest court unanimously dismissed appeals in Mencap v Tomlinson-Blake, which considered whether workers who “sleep in” are entitled to salaried hours for time not spent performing a specific activity.
Care providers estimated £400m in backpay for workers had the decision gone against them, an amount they said could not be afforded due to underfunding of the sector.
Acknowledging the importance of care workers who look after vulnerable people, and that sleep-in staff are among lowest-paid employees, Lady Arden said “sleep-in workers... are not doing time work for the purposes of the NMW if they are not awake” and “they are also not doing time work unless they are awake for the purposes of working”.
The appeals were brought by two care workers against the Royal Mencap Society, a learning disability charity that provides care for vulnerable adults under a local authority contract, and Clifton House Residential Home.
John Shannon, an on-call night care assistant, was provided with free accommodation at Clifton House where he was required to be from 10 pm to 7 am to assist the duty night care worker. He was permitted to sleep during these hours.
Clare Tomlinson-Blake was a Mencap care support worker who worked at the private homes of two vulnerable adults, where she had her own bedroom and access to a shared bathroom. At night, she was permitted to sleep but had to remain at her place of work.
In 2016, both Shannon and Tomlinson-Blake brought tribunal claims on the basis that they should be paid the national minimum wage for the duration of their sleep-in shifts. The tribunals found in favour of Tomlinson-Blake but dismissed Shannon’s claim. Shannon lost his appeal before the Employment Appeals Tribunal, while Tomlinson-Blake won an appeal brought by Mencap in 2017.
A year later, the Court of Appeal overturned the tribunal’s ruling in Tomlinson-Blake and dismissed a further appeal by Shannon, finding that the care workers were “available for work... rather than actually working” and that “the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working”.
Calls for reform
“This case was never about the money. It was about the principle of treating staff fairly,” commented Tomlinson-Blake following the Supreme Court ruling. “Sleep-in shifts aren’t about just being on call – it’s work. Staff are constantly on guard to protect the most vulnerable in society. The sound of a cough in the night could mean someone’s in danger.”
Mencap CEO Edel Harris said he understood care workers would be disappointed by the ruling, but blamed an ongoing lack of public funding as the rationale for defending the claims, while also calling on the government to reform “unfair” and outdated sleep-in pay legislation.
“[Government] should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better,” she said. “It is disappointing that there is still no plan for social care reform.”
Seemingly in agreement, Unison general secretary Christina McAnea said “everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance”.
“Today’s judgment shows ministers can’t disregard the desperate need for major reform a moment longer,” she said. “The longer the delay, the greater the betrayal of the most vulnerable in society and the dedicated workers who look after them.”
There is no doubt that a person on a sleep-in shift at work who has to respond immediately is on working time
The Voluntary Organisations Disability Group also called on the government to instruct the Low Pay Commission to establish a fair rate of pay for social care workers.
“There are no winners or losers in this case,” said Dr Rhidian Hughes, the charity’s CEO. “We are concerned of potential knee jerk reactions of local authority commissioners up and down the country which could see funding reduced, and therefore the pay of staff affected.”
“At the least, a regulated minimum rate for time spent sleeping must be set,” said Matthew Wort, a partner at Anthony Collins Solicitors who represented intervener Care England in the appeal.
“The rate could be decided by the Low Pay Commission to make it fair for care providers and employees. A more effective alternative would be establishing a national pay framework for the social care sector – providing clarity on what a care worker should be paid in all settings.”
In her analysis of the ruling, Cloisters’ Chesca Lord said the court did “not find that being asleep at work can never justify pay at the NMW and that “the judgment only relates to the scope of ‘work’ for the purposes of the NMW”.
“The meaning of ‘work’ for the purposes of the Working Time Regulations has its own separate line of jurisprudence,” she writes. “There is no doubt that a person on a sleep-in shift at work who has to respond immediately is on working time.”
Beverley Sunderland, managing director of Crossland Employment Solicitors, said: “It is important to remember that this is a ‘sleep-in’ decision – so this is not about workers who are either working at home or working away from home but expected to carry out specific tasks during their ‘shift’. They are workers working away from home and the expectation is that they will be sleeping.”
Lord added that employers attempting to reduce sleep in worker pay following the judgment should exercise caution: “Attempts to vary contracts of employment unilaterally could result in costly constructive unfair dismissal claims and damage employee relations.”
Commenting on Twitter, Professor Alan Bogg at University of Bristol Law School said: “Mencap is a salutary reminder that purposive statutory interpretation can be a fragile basis for advancing the economic interests of working people in an era of deregulation. When the euphoria passes, a landmark case is no substitute for a statute according enforceable rights.”
Tomlinson-Blake was represented by Sean Jones QC, Andrew Edge, and Leo Davidson of 11KBW, instructed by Unison Legal Services. Shannon was represented by Caspar Glyn QC and Chesca Lord of Cloisters, instructed by Thomas Mansfield Solicitors.
Mencap was represented by David Reade QC, Niran de Silva QC, and Georgina Leadbetter, instructed by Simons Muirhead & Burton. Mr and Mrs Rampersad, trading as Clifton House Residential Home, were represented pro bono by Judy Stone and Christopher Parkin of 11KBW, instructed by Morrison & Foerster.