Sleep-in shifts and the minimum wage

13 July 2018

The Court of Appeal judgment has overturned a previous ruling on sleep-in shifts and the minimum wage.

It is very common in the care sector for workers to agree to “sleep in” overnight at premises where elderly, disabled or otherwise vulnerable people live, on the basis that they can be called on if assistance is required in the night but otherwise have no duties. The agreement may be either free-standing or an add-on to a contract of employment involving other duties and will typically be in return for a fixed amount, with an entitlement to further pay if the worker is in fact called on. Residential staff, both in the care sector and elsewhere, may also be required to be “on-call” overnight.

On Friday 13 July 2018 the Court of Appeal heard two cases (MenCap v Tomlinson-Blake and Shannon v Rampersad) - the appeal in Mencap, together with Shannon v Rampersad, which is an appeal against a decision made in 2015 in another sleep-in case.  In this case it is the employee who is the Appellant.

The broad issue in both these appeals is whether the entirety of the period spent on the premises under such arrangements must be taken into account in calculating an employer’s obligations under the National Minimum Wage Regulations or only such time as is spent actually performing some specific activity.

There is a good deal of case-law relevant to that question, but its effect is not straightforward. Last year the Employment Appeal Tribunal heard together three sleep-in cases with a view to giving, so far as possible, authoritative guidance. The cases were Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake. Each case was found in favour of the claimant, though only in the Mencap case was the decision directly decisive of the national minimum wage issue. The employers in that case appealed.

The decision made by the Court of Appeal is not to count sleep-in shifts as working time, 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.

According to UNISON the union, who took the initial case to an employment tribunal on behalf of care worker Claire Tomlinson-Blake, this legal decision is wrong, and is at odds with legal precedents and a common sense understanding of what counts as work. UNISON argued that most care workers on sleep-in shifts aren’t sleeping. Most nights they have to get up to care for people, are on constant call, and are not free to come and go from their place of work.

As a result of the judgment, UNISON is considering an appeal to the Supreme Court.

 

CIPP comment

Last autumn the government introduced a new social care compliance scheme for providers that may have incorrectly paid workers below legal minimum wage hourly rates for sleep-in shifts. It was designed to help ensure workers are paid what they are owed, while also maintaining important services for people who access social care.

It is not clear what the Court of Appeal’s ruling means for those workers who are still owed money.