On 19 March 2020, the Supreme Court held in Royal Mencap Society v Tomlinson-Blake that care workers who were required to sleep at or near their workplace and be available to be called on during the night, are not entitled to the national minimum wage (NMW) for the whole of their “sleep-in shifts”.

This is a significant and much welcomed decision for care sector employers. Many such organisations may not have been able to afford to pay the NMW to each worker for an entire night-shift, rather than a lesser fixed allowance which is permitted for “sleep-in shifts” under the NMW legislation. Also, care sector employers will be relieved that the door has now been closed on huge back pay claims for arrears of pay for historic shifts.

Clearly, the decision will be disappointing for many care workers as their access to the NMW for the entirety of their “sleep-in shifts” has been denied and the Supreme Court’s decision is final.

1. Mrs Tomlinson-Blake

The case was pursued by Mrs Tomlinson-Blake who is employed by Mencap and provides care and support to two vulnerable adults, each in a private property. Both men have autism and substantial learning difficulties, which mean they require 24-hour support.

Mrs Tomlinson-Blake was paid £29.05 in total by Mencap for a “sleep- in” night shift between 10pm to 7am. No specific tasks were allocated during the sleep-in shift. However, Mrs Tomlinson-Blake was required to keep a ‘listening ear’ out whilst in bed during the night, whether asleep or not, in case her support was needed and then she was expected to intervene if necessary.

The need to intervene was found be infrequent – 6 times over the preceding 16 months. Without any such interventions, Mrs Tomlinson- Blake was entitled to sleep throughout the night. Where her sleep was disturbed and she was required to provide support during the night, the first hour was not additionally remunerated, while any further hours were paid for in full.

Her claim in the Employment Tribunal was that she was entitled to have all the hours spent “sleeping in” counted as working time or “time work” for the purposes of NMW Regulations 2015. The Employment Tribunal and (on appeal by Mencap) the Employment Appeal Tribunal agreed with Mrs Tomlinson-Blake’s contention and upheld her claim. However, the Court of Appeal in England then overturned this decision on 13 July 2018, deciding that she was not entitled to NMW payments for such sleep-in shifts. Mrs Tomlinson-Blake then appealed to the Supreme Court.

2. Clifton appeal

A second appeal case was brought by Mr John Shannon, a Surrey care worker, whose case was heard by the Supreme Court at the same time as Mrs Tomlinson-Blake's. His case against his former employers at Clifton House residential care home was also dismissed by the Supreme Court. Mr Shannon was employed as an “on-call night care assistant” and worked in a studio within the care home. He was required to be in the studio from 10pm to 7am. He was able to sleep during those hours but was required to respond to any request for assistance by the night care worker on duty at the home. In return, he received free accommodation and £50 per week (later rising to £90 per week). He was rarely asked to assist the night care worker. He had day jobs as a driver from time to time.

His claim to the Employment Tribunal was that he was entitled to have all hours between 10pm and 7am counted as “salaried hours worked” for minimum wage purposes for 365 days per year. He asserted that the arrears in wages due to him on that basis were almost £240,000. The Employment Tribunal dismissed his claim for such minimum wage arrears. The Employment Appeal Tribunal affirmed the Tribunal’s decisions. The Court of Appeal in England dismissed his further appeal on 13 July 2018. Mr Shannon then appealed to the Supreme Court.

3. Key points

The key points from the Supreme Court’s decision are as follows: -

1. The appeals of Mrs Tomlinson-Blake and Mr Shannon were unanimously dismissed.
   
   
2. Lady Arden, giving the leading Judgment, reviewed the history of the NMW legislation. Under the National Minimum Wage Act 1998, the UK Government was bound to accept the recommendations of the Low Pay Commission (LPC). The LPC is an independent non- departmental public body, which advises the UK Government about the NMW.
   
   
3. The Supreme Court gave weight to the recommendations of the LPC that “sleep-in” workers should receive an allowance and not the NMW unless they are awake for the purposes of working. This principle was implemented within regulation 32 of the NMW Regulations 2015. It is often referred to as the ‘“sleep-in” exception’.
   
   
4. Lady Arden highlighted that under this exception the worker must be awake “for the purposes of work” to be entitled to the NMW. If the only requirement is to respond to emergencies, the worker’s time in those hours is not included in the NMW calculation unless the worker is actually required to answer an emergency call. So only the period for which he or she is awake for the purpose of working will count as “time work” and is included within the calculation for NMW.
   
   
5. This landmark decision overturns the earlier English Court of Appeal decision of British Nursing v HMRC, which previously held that a worker could be ‘working’ even if not required to be awake. Lady Arden held that the Court of Appeal had failed to recognise that there is a distinction between ‘working’ and being ‘available for work’. Therefore, this earlier decision was overruled.