The Court of Appeal has held in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House Residential Home) (the Mencap case) that employees are not entitled to the national minimum wage (NMW) for the full duration of their sleep-in shift because the work they are carrying out is "time work", and they are therefore only entitled to NMW when they are awake and carrying out duties.
The Court looked first at the National Minimum Wage Regulations and concluded that their effect is that a worker who is required to be available for the purpose of working, at or near his or her place of work, is entitled to have this time counted as time work for NMW purposes. There were two situations where this would not be the case; where the worker is at home, or where the arrangement is that they will sleep (and be given facilities for doing so). In the latter scenario only the hours where they are, and are required to be, "awake for the purpose of working" will qualify for the NMW.
The Court also took into account the recommendations of the Low Pay Commission reports that those carrying out sleep-ins should be entitled to the NMW for all the times when they are awake and required to be available for work. It then took a comprehensive look at existing case law. It concluded that although case law established that the fact that a worker can go to sleep in the intervals between certain tasks was not necessarily inconsistent with them working during the entirety of the period, this did not mean that in a case such as Mencap or Shannon "where the essence of the arrangement is that the worker is expected to sleep", the same reasoning would apply.
In Mencap the claimant slept by arrangement at her place of work whilst on her sleep-in shift and was expected to deal with any emergencies that might arise. As a result she was treated as being available for those hours, rather than actually working. It followed that the sleep-in exception applied, with the result that only those hours during which she was required to be awake for the purpose of working counted for NMW purposes.
Meanwhile in Shannon the caretaker was again only available for work and not actually working. The question of whether the employer was in breach of regulatory requirements did not assist in the question of whether the claimant was actually working or just available for work.
Take note: It is highly likely that Unison will seek leave to appeal to the Supreme Court, but in the meantime the decision comes as a great relief to care providers who have been facing an ever-increasing pressure on budgets. However, the decision also raises a number of questions and practical challenges which care providers will have to confront over the coming months.
For further details of these challenges please refer to our newsflash 'Sleep-ins: a solution for now?'
This article is taken from HR Law - August 2018.
