Many employers, from factories to care homes to call centres, require workers to perform tasks overnight. Sometimes, however, the tasks arise so intermittently and unpredictably that an employer just needs someone to be on call, ready to perform a task when needed. When 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.
In Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8, the Supreme Court has confirmed that only the time when “sleep-in” workers are awake for the purpose of working will count for national minimum wage (‘NMW’) calculations. The line of case law which suggested otherwise, including British Nursing Association v Inland Revenue [2002] EWCA Civ 494, Scottbridge Construction Ltd v Wright2003 SC 520 and Burrow Down Support Services Ltd v Rossiter[2008] ICR 1172, is no longer to be regarded as authoritative.
National Minimum Wage Regulations 2015
As might be expected, hours which are spent actually working are always included in the NMW calculation.
Additionally, under regulation 32 of the National Minimum Wage Regulations 2015 (SI 2015/621) (NMW Regulations 2015) (and its predecessor, regulation 15 of the NMW Regulations 1999) 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 permits the worker to sleep during a shift, and provides suitable facilities for sleeping, then only the hours when the worker is awake for the purposes of working will count.
Regulations 15/32 only apply when someone is not actually working. It is sometimes described as a “deeming” provision, in that it treats time when someone is merely required to be available for work as if it were time spent working. It follows that the exceptions for home working and sleeping time simply do not arise when someone is actually working.
Mencap v Tomlinson-Blake
Mrs Tomlinson-Blake was an experienced 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. She was positively expected to get a good night’s sleep.
Traditionally, sleep-in care workers like Mrs Tomlinson-Blake have been paid an allowance for the whole shift, at below NMW rates, plus NMW rates for any time when they are actually called on to work.
However, in a series of decisions from Burrow Down Support Services to Mencap v Tomlinson-Blake (reported as Focus Care Agency v Roberts [2017] ICR 1186), the EAT decided 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 and were entitled to NMW rates even when sleeping.
In finding that Mrs Tomlinson-Blake was working throughout her shift, the ET had taken 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 Mrs Tomlinson-Blake was constantly on call; even when asleep she had to be present and listening out, ready to judge whether intervention was required.
In the EAT, 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” (Focus Care Agency, at paragraph 31). She decided that classifying a particular case as being on one side or the other required a multifactorial evaluation, with no single factor being determinative, and no exhaustive list of factors provided.
The EAT upheld the finding of the ET based on this multifactorial evaluation.
Supreme Court in Mencap v Tomlinson-Blake
The Court of Appeal disagreed with the EAT, and the Supreme Court has now dismissed Mrs Tomlinson-Blake’s appeal.
Lady Arden relied on the First Report of the Low Pay Commission (Cm 3976) (June 1998) to identify the objectives of the NMW Regulations 2015. The Low Pay Commission’s (LPC) starting point was that working time included all time which a worker had to spend at the employer’s place of work ready to be called on to work, even if no work was available. However, working time did not include time spent on call or on standby elsewhere.
For the special case of workers who were sleeping at the employer’s premises while on call, the LPC recommended that a shift allowance should be agreed between workers and employers, but they would be entitled to NMW “for all times when they are awake and required to be available for work”. The LPC “plainly did not consider that a sleep-in worker who was sleeping could be said to be working …” (Mencap, at paragraph 46). Lady Arden held that the drafter of regulations 15/32 took the same view, since the exception for sleep-in provision appears in the context of availability for work rather than in the context of defining when a worker is working.
Finally, Lady Arden noted that, to count as available for work under regulations 15/32, a person must be both awake and awake for the purposes of working; that is, hours when they are awake for their own purposes are not counted.
On that basis, she agreed with the Court of Appeal that Mrs Tomlinson-Blake was entitled to the NMW only when she was awake for the purposes of working and not for the whole period of her shift.
Implications for organisations and workers in the care sector
This decision is particularly welcome to organisations in the care sector, which rely on sleep-in workers who are often on low pay. It is, of course, equally unwelcome to the care workers themselves, even more so after a year during which they have faced some of the most difficult circumstances created by the COVID-19 pandemic.
However, it should be remembered there is still a line to be drawn between working under regulations 3/20, and being available for work under regulations 15/32. Lady Arden agreed with Underhill LJ that a worker whose tasks are intermittent may have facilities provided for sleeping, and be permitted to take a nap between tasks, and still be working throughout their shift for NMW purposes. As she noted, the sleep-in exception under regulations 15/32 only covers arrangements:
“where the principal purpose and objective of the arrangement is that the employee will sleep at or near the place of work, and responding to any disturbance during the time allocated for sleep must be subsidiary to that purpose or objective.” (Mencap, at paragraph 57).
Whether that is true for any particular worker will depend on the individual facts.
