The National Minimum Wage (NMW) Regulations 1999 state that workers must be paid the minimum wage for the hours they work. In the two conjoined appeals of The Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand, the Supreme Court held that “sleep-in” workers who have to sleep at or near their place of work are not entitled to the NMW while they are asleep and therefore not working.
Ms Tomlinson-Blake, a care worker for Mencap, provided support for two vulnerable adults at their own home. During her sleep-in shift, she was not allocated any specific duties, except to “keep a listening ear out” in case she was needed, which did not happen very often. Ms Tomlinson-Blake claimed that all the hours she spent sleeping should be counted as time work under regulation 15 of the NMW regulations and therefore she should be paid the minimum wage for the whole of her shift.
Mr Shannon worked as an on-call night care assistant in a residential care home from 10pm to 7am. He slept in a flat provided by his employer, which was also his home. He was required to help the night care worker on duty at the home, but this happened rarely. He claimed that, as a salaried hours worker, he was entitled to be paid the NMW for the whole shift under regulation 16(1)(A) of the 1999 regulations.
The calculation for the NMW differs depending on whether the work is “salaried hours work”, “time work”, “output work” or “unmeasured work” as defined by the regulations. This case was only concerned with time work and salaried hours work.
Regulation 15 of the NMW 1999 states that time work includes time when a worker is “available at or near a place of work”. Hours when a worker is “available” only include hours when the worker is awake “for the purpose of working”.
Regulation 16(1) states that salaried hours work includes time when a worker is available “at or near a place of work” unless the worker’s home is at or near the place of work and “the time is time the worker is entitled to spend at home”.
Regulation 16(1A) states that where a worker who “by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time …. shall only be treated as being salaried hours work when the worker is awake for the purpose of working”.
Decisions of lower courts
The tribunal held that Ms Tomlinson-Blake was working during her shift. Even though she did not have much to do, she was required to be there and exercise her professional judgment as to whether intervention was required. The EAT agreed.
The tribunal dismissed Mr Shannon’s claim on the basis that it fell within the “at home” exception under section 16(1). The EAT (weekly LELR 445) also dismissed the claim on the basis that the sleep-in exception for salaried hours workers in regulation 16(1A) applied.
The Court of Appeal (weekly LELR 589) held that neither Ms Tomlinson-Blake nor Mr Shannon was entitled to be paid the NMW for all the hours of their respective sleep-in shifts as neither of them was “actually working” during that time. Instead, it held that sleep-in workers in this situation were available for work, rather than actually working.
Decision of Supreme Court
The Supreme Court held that the meaning of the sleep-in provisions is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW calculation for time work or salaried hours work. In order to be paid, the worker must be awake for the purpose of working.
It followed that previous judgments, including British Nursing v HMRC, had been wrongly decided.
The court distinguished between carrying out “actual work” on the one hand and being “available for work” on the other which provides a clear steer as to whether any worker carrying out a sleep–in shift is entitled to be paid the NMW. This judgment will have an enormous impact on the care sector and is a blow for those performing a vital role in caring for the most vulnerable in our society.