Court of Appeal rules ‘sleep-in’ workers not entitled to minimum wage
The Court of Appeal has held that care workers who sleep-in are not entitled to the national minimum wage (or national living wage) for the time they are asleep. This applies to those employees who are available to provide care support and may be woken, if required, but otherwise are expected to sleep for all/most of the night. It applies where workers are given suitable facilities for sleeping (normally a bed) at the place of work. This important decision in the joined cases of Royal Mencap Society v Claire Tomlinson-Blake and Shannon v J&P Rampersad (t/a Clifton House Residential Home) changes what had previously thought to be the law.
In the Mencap case the claim was brought by a support worker who worked an evening shift and then a morning shift the following day. In between the two shifts, she was paid a flat-rate for a nine-hour sleep-in at the service-user’s premises. She was expected to intervene where necessary to deal with events that might require her attention over-night (for example, if the service-user was unwell), but the need to intervene was infrequent (it had only been six occasions over the preceding sixteen months). The employment tribunal found that the national minimum wage should be paid for the totality of the hours worked, including those spent sleeping.
The appeal has been closely monitored by the social care sector, as they faced the prospect of huge increases in costs and backpay bills which could have been as high as £400 million. The Court of appeal overturned the decision of the original tribunal and emphasised an important difference between those who have to undertake actual work and those who only need to be available for work. Those who undertake actual work, such as most security guards or those who are required to answer telephone calls throughout the night (but may have slack periods), must be paid minimum wage for the time they work. However, those who are simply available to work, such as many care workers, are not entitled to minimum wage if they are able to sleep and a bed is made available to them.
There are two important limitations to this which the Court of Appeal highlights:
- The law applicable to minimum wage is completely different to the law which applies to working time. This means a care worker may be working even though asleep for the purposes of the Working Time Regulations (and therefore entitled to rest breaks and subject to the limits on working time), when not entitled to the minimum wage; and
- Whether each individual employee is undertaking actual work or is simply available for work (when able to sleep) “is factual in character, and in marginal cases different Tribunals might well assess very similar facts differently”.
This judgement will be a huge relief to care providers, who faced a vast increase in their future pay bills, together with significant claims for back pay. However, some uncertainty remains as to where the line sits between an employee ‘actually working’ and just being ‘available for work’, as this may depend upon the type of work undertaken and the likely intensity of the on-call. It is also possible that this decision may be appealed to the Supreme Court, so this may not be where the story ends.