Sleep-in shift time not work for national minimum wage regulations’ purposes – Royal Mencap Society v Tomlinson-Blake

The issue on appeal was how to calculate the number of hours worked by a sleep-in worker for the purpose of the national minimum wage. The decision provides much-needed clarity and will be a relief for employers, but disappointing for care and other types of sleep-in workers who comprise a low-paid sector of the workforce.

The law

To ascertain whether an employer is paying the national minimum wage, the worker’s hourly pay must be calculated. The rules relevant to the calculation, under the National Minimum Wage Regulations 1999 and 2015, differ depending on whether the work is salaried hours work, time work, output work or unmeasured work.

In formulating the 1999 regulations the government had to implement the recommendations of the Low Pay Commission or give reasons for not doing so. The commission recommended that an allowance should be agreed for the hours when workers are paid to sleep on premises, but that the national minimum wage is paid ‘for all times when they are awake and required to be available for work’.

 This was reflected in the 1999 and 2015 regulations. In summary, in relation to time work, they provide that a worker who is, and is required to be, (a) available for the purpose of working (b) at/near their place of work is entitled to have that time counted as time work for national minimum wage purposes unless:

• they are at home; or
• the arrangement is that they will sleep (and be given facilities for doing so), in which case the only hours which count are those when they are, and are required to be, awake for the purpose of working.

The facts

Mrs Tomlinson-Blake was a care support worker whose work included sleep-in shifts for specified hours. She had no duties during the night except to attend to any emergency, and was only woken occasionally. Her work fell under time work (pay for a set number of hours).

Mr Shannon was an on-call night care assistant who lived in accommodation at a residential care home. He had to respond to any calls from the night care worker between 10pm and 7am, but in practice was rarely called upon. His work fell under salaried work.

The Employment Appeal Tribunal (agreeing with the Employment Tribunal) considered that Mrs Tomlinson-Blake was performing time work even when asleep, due to being constantly on call, but that Mr Shannon could not claim the national minimum wage because:

• he was not working throughout his shift, and
• his accommodation was his home.

Therefore both of the exceptions applied.

The Court of Appeal allowed Mencap’s appeal against Mrs Tomlinson-Blake, and dismissed that of Mr Shannon.

 The Supreme Court’s decision

 The court agreed with the Court of Appeal, and held that a sleep-in worker who is merely present is not treated as working.

Lady Arden highlighted that workers are not entitled to a wage simply by virtue of being subject to the employer’s instructions, as there are many situations when a worker is acting for the employer’s benefit but is not paid – for example, when travelling to/from work (35).

The court held that the purpose of the regulations, with regard to time work, is that a sleep-in worker cannot be actually working for national minimum wage purposes if the arrangement is that the worker is to be present and sleep on the premises, subject only to emergency calls.

As such, the rules for sleep-in workers were held to be quite clear: they are not doing time work, for national minimum wage purposes, if they are not awake.

Further, if awake, they must be awake for the purposes of working. Therefore it is necessary to look at the arrangements between employer and worker to see what the worker is required to do when not asleep but within the hours of the sleep-in shift, to see if that time qualifies for the national minimum wage. If the worker is given time to sleep subject to the requirement to respond to emergency calls, the worker’s time is not subject to the national minimum wage calculation unless the worker answers such a call. (44-45).

Lady Arden agreed with the Court of Appeal that the same result applied to time work and salaried work, as well as unmeasured work (63).

Overturning British Nursing Association v Inland Revenue

The Supreme Court, in reaching its decision, overruled the Court of Appeal’s decision in British Nursing that workers, at home, who answered calls during the night but infrequently between 11.30pm and 5.30am, and could therefore sleep, were working. The Supreme Court gave different bases for rejecting this analysis:

• Lady Arden held that the Court of Appeal had failed to appreciate the fundamental distinction between actually working, and being available for work;
• Lords Carnwath and Wilson considered that the Court of Appeal could not properly have concluded that the employees were working for the whole of their shifts; and
• Lord Kitchin found that the regulations have to be interpreted as a whole, and that the sleep-in provisions cannot be avoided by saying that a worker is performing work for the whole of the shift.

Different factual circumstances?

 In overruling British Nursing, Lady Arden highlighted that tribunals should appreciate the range of distinctions that fall to be made and make appropriate findings, as arrangements vary considerably on their facts (61).

Workers and employees involved in sleep-in arrangements should therefore consider carefully what time qualifies as time work, and therefore the national minimum wage, including whether the frequency of the work is such that the entire shift may be considered time work.

Likewise, given the court was divided in its rejection of British Nursing, it is possible that a challenge could be brought in the future in relation to the home-working exception.

Pupil barrister Ryan Anderson previously worked as an Employment Tribunal advocate for 2 years. He is able to accept instructions in employment law cases.