The magnitude of the Court of Appeal judgment in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2018] EWCA Civ 164 should not be underestimated by health and social care providers. This appeal considered the issue of backdated “sleep in” liabilities and whether “sleep in” workers were entitled to the National Minimum Wage (‘NMW’) for the time spent asleep.

After years of uncertainty over NMW requirements, the Court of Appeal has determined that only time spent awake and working should be considered as ‘working time’ during a “sleep in” shift.

The facts of Royal Mencap Society v Tomlinson-Blake at the Employment Appeal Tribunal (EAT)

In 2017, the EAT heard a collective appeal on the issue of care workers’ sleep-in shifts and the NMW. The three cases concerned the issue of whether a carer was working during a “sleep in” shift and therefore whether they were entitled to receive the NMW. One of the cases in this appeal was Royal Mencap Society v Mrs Tomlinson-Blake.

In this case, Mrs Tomlinson-Blake cared for adults with autism. Mrs Tomlinson-Blake had her own bedroom and was required to keep a ‘listening ear’ during the night in case she was required to care for the service users, she was otherwise free to sleep or use her time as she wished but she could not leave the service user’s premises.

Mrs Tomlinson-Blake contended that her pay fell below the NMW, during her nine hour “sleep in” shift. The EAT held that she was entitled to the NMW because she had to continuously use her professional judgement to decide if she needed to intervene. She was also required to be at her place of work and available to work, even if there were no specific tasks to perform.

The National Minimum Wage and the Court of Appeal judgment

The National Minimum Wage Regulations 2015 acts as consolidating legislation for the 1999 Regulations and the relevant provisions are considered in the Court of Appeal case. Lord Justice Underhill helpfully summarises the effects of the Regulations in paragraph 41 of his judgment, stating that, “a worker who is, and is required to be, (a) available for the purpose of working (b) at or near his or her place of work” is entitled to have “the time in question counted as time work for NMW purposes unless he or she is at home; or the arrangement is that they will sleep (and be given facilities for doing so), in which case only those hours will count when they are… required to be, awake for the purpose of working.”

In the judgment at paragraph 43, Lord Justice Underhill considered how the Regulations would apply in a “sleep in” case since the “sleep-in” exception only applies in availability cases, not in cases where the worker is actually working. He stated that,The self-evident intention of the relevant provisions is to deal comprehensively with the position of sleep-in workers…. it would not be a natural use of language, in a context which distinguishes between (actually) working and being available for work, to describe someone as “working” when they are positively expected to be asleep throughout all or most of the relevant period.”

In the judgment at paragraph 86, Lord Justice Underhill drew a distinction between actual work and available for work, stating that, “For the reasons which I have given I believe that sleepers-in… are to be characterised for the purpose of the Regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception… The result is that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.”

There is still an issue on the facts of Mencap. The classic “sleeper in” goes to bed in a dedicated space in a care home and they sleep undisturbed unless they are required. If required, the worker must get up to work and is paid at least the NMW for the time worked.

In Mencap, there is a hint that the “sleeper in” is required “parentally” to be alert. This is slightly different as the “sleeper in” is the only person on shift. The Court of Appeal were persuaded on the detailed analysis of actual hours worked. This should be noted for those with similar cases in the future.

Previous case law

There has been various case law in relation to the issue of “sleep in” workers and payment for NMW purposes.

The most prominent case was British Nursing Association v Inland Revenue [2003] ICR 19, in which, nurses operated a 24-hour telephone assistance line and were required to answer any calls that came in over the duration of their shift. In between calls, the nurses could do as they pleased, including sleeping. It was held by the Court of Appeal that the nurses were “working” for NMW purposes throughout the whole of their shift and not just when they were answering calls.

Another significant case was Scottbridge Construction Ltd v Wright [2003] IRLR 21. In this case, a night watchman at a construction company had to perform tasks at the start and end of his shift. The watchman had to remain on the premises to deal with any alarms or answer the telephone for approximately a five-hour period each night. However, he was rarely called upon during this time and could sleep on a mattress in the office. It was held that the work the watchman was paid for, as permitted by his contract, was for his attendance and he was entitled to the NMW for the duration of his shift, including the time he was asleep.

The same principles were applied in a number of succeeding EAT cases. Some of those cases held that workers were required to be paid for the whole time they were on the premises and other cases held that time spent on the premises should not constitute work, it should only constitute time available for work and therefore the “sleep in” exception should apply.

Comment – what does this judgment mean in practice?

This is an important decision for employers in the care sector. It means that so long as there is no appeal to the Supreme Court, providers can now confidently rely on the correct legal framework to make decisions about pay during “sleep in” shifts. It means that “sleep in” workers are only entitled to the NMW when they are awake and actually working, not when they are asleep and merely available for work.

This judgment will no doubt be welcomed by the Government as many providers have been unable to meet their pay back liabilities and have been lobbying the government for assistance. Professor Martin Green OBE, Chief Executive of Care England commented that, “We welcome the Appeal Court ruling and hope we can now move forward, without a huge back pay liability hanging over the sector and threatening the ongoing care of thousands, to ensure we focus on getting social care services funded properly for the future.”

The decision may not be welcomed by some care workers as they could see a reduction in their pay when working overnight as a result of this decision. However, other workers may see it as a “bonus” in the sense that they are being paid a flat fee to be asleep and this is supplemental to their income.