Until recently, a series of EAT decisions stretching back more than a decade appeared to establish that some sleep-in workers were entitled to be paid the national minimum wage (NMW) for every hour of their shift, including hours when they were asleep.
In Royal Mencap Society v Tomlinson-Blake (Care England intervening) [2018] EWCA Civ 1641, the Court of Appeal has rejected this position, holding that only the time when such workers are awake for the purpose of carrying out their duties will count for NMW calculations. This will come as a relief to organisations in the social care sector, as the prospect of paying arrears as well as increased future costs had threatened to tip an underfunded sector into crisis. However, Unison has sought leave to appeal to the Supreme Court.
Many employers, from factories to care homes to call centres, require workers to perform tasks overnight. Sometimes, however, the tasks only arise intermittently and unpredictably, so that an employer just needs someone to be on call, ready to perform a task when needed. Where tasks are sufficiently infrequent, the employer may arrange for the worker to sleep for all or most of the night and provide suitable facilities for doing so.
Simple enough, perhaps; but the question of precisely which hours should count under the National Minimum Wage Regulations 1999 and 2015 has proved far from simple.
The NMW Regulations
As might be expected, hours which are spent actually working are always included in the calculation.
Under regulation 32 (and its predecessor under the 1999 Regulations, regulation 15) the calculation for time work also includes time when a worker is available, and required to be available, at or near a place of work for the purposes of working. However, this is subject to two exceptions:
- Time spent at home is not included, even if the worker is required to be there and to remain available for work.
- If the employer arranges for the worker to sleep during a shift, and provides facilities, then only the hours when the worker is awake for the purposes of working will count.
There are similar provisions in respect of salaried hours work in regulation 27 (formerly regulation 16), which apply once the worker has exceeded their basic hours.
Regulations 15/32 and 16/27 only apply when someone is not actually working. They are sometimes described as “deeming” provisions, in that they treat time when someone is merely required to be available for work as if it were time spent working. It follows that the exceptions under those regulations, for home work and sleeping time, do not arise when someone is actually working.
The EAT in Mencap v Tomlinson-Blake
Traditionally, care workers who sleep in so as to be available if assistance is required have been paid an allowance for the whole shift, at below NMW rates, plus NMW rates for any time when they are actually called upon to work. Government guidance issued in December 2013 appeared to support this approach (see BIS: Calculating the minimum wage (December 2013), page 30).
However, the EAT, in a series of decisions from Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172 to Mencap v Tomlinson-Blake (reported as Focus Care Agency v Roberts [2017] ICR 1186), found that some sleep-in workers were actually working throughout their shifts, not merely deemed to be working. These workers were not therefore covered by the exception for sleeping time under regulations 15/32 or 16/27, and were entitled to NMW rates even when sleeping.
In Focus Care Agency Simler P identified in the authorities a “clear dichotomy” between “those cases where an employee is working merely by being present at the employer’s premises … whether or not provided with sleeping accommodation and those where the employee is provided with sleeping accommodation and is simply on-call” (paragraph 31). However, classifying a particular case as being on one side or the other required a multifactorial evaluation to be conducted, with no single factor being determinative.
Ms Tomlinson-Blake was a skilled care worker who supported two men with substantial learning disabilities living in a privately-owned property. Some of her shifts were sleep-in shifts from 10.00 pm to 7.00 am and she was provided with her own bedroom in the house. During her sleep-in shifts she was required to remain at the house and intervene if she judged that her support was necessary, which the ET found had happened on six occasions in a 16-month period. However, she was positively expected to get a good night’s sleep, not least because she might be working the next day.
In finding that she was working throughout her shift, the ET took into account:
- Mencap’s regulatory obligation to have someone on the premises.
- Mencap’s obligation under its contract with the council to have a carer present at a service user’s home.
- The fact that Ms Tomlinson-Blake had to be present and listening out, even when asleep, ready to exercise her professional judgement as to whether intervention was required.
The EAT upheld the finding on the basis that this evaluation was properly multifactorial and took only relevant factors into account.
The Court of Appeal in Mencap v Tomlinson-Blake
The Court of Appeal disagreed.
Underhill LJ accepted that some workers, such as night watchmen, might at times sleep during a night shift as well as performing other expected duties, and might be entitled to NMW rates. In contrast, however, he held that the essence of a “sleep-in” contract is that the worker by arrangement sleeps at the workplace and is given suitable facilities for doing so. Under such a contract the worker is available for work, but is not actually working, and the sleep-in exception in regulations 15/32 and 16/27 applies.
In reaching this conclusion he drew on the recommendations in the first Low Pay Commission report, which the NMW Regulations were intended to implement. That report dealt explicitly with sleep-in workers:
“Certain workers, such as those who are required to be on-call and sleep on their employer’s premises (e.g. in residential homes or youth hostels), need special treatment. For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the national minimum wage for all times when they are awake and required to be available for work.” (See First Report of the Low Pay Commission (Cm 3976) (June 1998), paragraph 4.34, page 61.)
It has always been clear, then, that there is a line between working and being available for work. In a series of cases since Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172, the EAT had placed sleep-in care workers on the “working” side of the line rather than the “available for work” side. The Court of Appeal has now said Burrow Down and its successors were wrongly decided, and placed sleep-in workers firmly on the “available for work” side of the line. It remains to be seen whether the Supreme Court will take a different view.
