The cases concerned a very similar issue of whether a carer performing a sleep-in shift was actually working or simply available for work, an important distinction for National Minimum Wage ("NMW") entitlement.
The outcome of this appeal is a significant issue for the care sector as it is questionable whether a number of care sector organisations could afford to pay the NMW for a night-shift rather than a lesser fixed allowance. For the purpose of this update we will focus on the facts in the Mencap case.
Mrs Tomlinson-Blake cared for adults with autism and substantial learning difficulties and received a flat rate payment of £22.35 plus one hour’s pay (£6.70) for a nine hour sleep-in shift, making a total payment of £29.05. Mrs Tomlinson-Blake contended that her pay fell below the NMW.
Mrs Tomlinson-Blake had her own bedroom and was required to keep a “listening ear” during the night in case her support was required. If wakened she was also required to use her professional judgment to determine the best way to care for the adults. She was otherwise free to sleep or use her time as she wished, but she could not leave the service user’s premises. No specific tasks were allocated to Mrs Tomlinson-Blake and over a 16 month period there were only six occasions where she was required to get up and intervene.
Mrs Tomlinson-Blake was successful at the Employment Tribunal and the Employment Appeal Tribunal. Mencap appealed to the Court of Appeal.
The Court of Appeal found that "Sleepers-in" are "available for work" rather than "actually working" and so fall within the sleep-in exception under the National Minimum Wage legislation.
What is the sleep-in exception? Employers can take advantage of the sleep-in exception where an arrangement is made for the worker to sleep and is given facilities for doing so. Workers on sleep-in shifts will only be entitled to have their hours count for NMW purposes if they are, and are required to be, awake for the purpose of working.
Mrs Tomlinson-Blake clearly fell within the sleep-in exception and so was not entitled to the NMW for the shift unless required to be awake and working. The Court of Appeal did not consider Mrs Tomlinson-Blake's situation to be unique and noted that any sleeping-in worker had to have a "listening ear", and the fact that she had to use her professional judgment once awake was irrelevant to the analysis.
The case of Shannon was based on similar facts and the Court of Appeal found in favour of the employer. In that case the employee had appealed and his appeal was dismissed.
This decision will come as a welcome relief for employers in the care sector. As highlighted above, the affordability of paying the NMW for sleep-in shifts is questionable for many care sector organisations. Employers would not only have had to budget for the increased cost going forward, but would also have been at risk of back pay claims of up to six years for a civil claim (two years for an unlawful deduction from wages claim in the Employment Tribunal).
An appeal is being considered, we will keep you informed.