Last reviewed 1 April 2021
In a long-standing case, Tomlinson-Blake v Royal Mencap Society, the Supreme Court (SC) has held that “sleep-in” carers are not entitled to receive national minimum wage (NMW) for the hours they spend asleep and are therefore not working. Here, we discuss the details of the case.
This decision, as will be explored in detail below, was first reached by the Court of Appeal (CA) after it overturned the lower courts’ decisions. Importantly, both the CA and SC found the definition of “work” to be important in their decision-making process. This is because, according to the National Minimum Wage Regulations 2015, time when workers are required to be available at or near their employer’s place of business for the purposes of working is generally considered to be “work” for which the NMW is payable. This is the case for workers who perform “time work” (those who are paid by the hour) and “salaried hours work” (those who earn an annual salary).
The employee operated in the care sector and regularly undertook overnight “sleep in” shifts at the premises in which elderly, disabled or otherwise vulnerable people lived. The idea was that she was on call to provide urgent assistance to these individuals if required but, aside from this, had no further duties.
Due to the unsociable hours that these shifts required, the claimant was allowed to sleep whilst undertaking the role. In actuality, it was very rare that she was needed during the night and was therefore able to sleep through most of her shifts.
The issue here involved how the employee was paid for the overnight shifts. During any periods that she worked in the day she was remunerated at an hourly rate that reflected her NMW entitlements. However, during the “sleep in” shifts, she was paid a flat-rate allowance plus the amount of one hour of pay to reflect the fact that she may be woken up on occasion.
As a result, the employee argued that the employer was not following the provisions in the 2015 Regulations, concluding she should have been entitled to the full NMW throughout the entirety of her shift, including the times when she was asleep.
The ET and EAT
As mentioned above, the employee’s claim was upheld by the original Employment Tribunal (ET) and by the Employment Appeal Tribunal (EAT). Both courts found that “time worked” for NMW purposes included all times when the employee was available for work. As she was expected to be available throughout the night shift, the employee was entitled to the NMW even when sleeping.
The EAT went further to say that the question of whether someone was “working” when asleep was “multi-factorial” and therefore could only be determined from a “unique basket” of factors. The difficulty arose when considering the potentially variable nature of their interpretation and the weight that could be given to individual areas. The EAT concluded that, ultimately, each factor required an individual assessment, worker by worker.
The employer appealed to the CA.
The Court of Appeal
The CA allowed the appeal, finding that the employee was not actually “working” whilst asleep but was “available for work”.
In forming their decision, the CA referred to a Low Pay Commission report of 1998, which they believed clearly showed an intention that “sleep-in” shifts would not attract NMW protection for periods when the worker was sleeping. They found that both the ET and the EAT had erred by not looking at the clear distinctions between “working” and being “available for work”.
The CA pointed out that the situation where the worker, by arrangement, sleeps at work is dealt with under the “available for work” provisions. This must mean, according to the CA, that it was intended that people on sleep ins are only “available for work” rather than “working”.
The CA explained that if the essence of the situation is that the worker is expected to sleep for the whole or most of the sleep-in shift, then they are only “available for work”. This means that the only time which attracts NMW is the time spent awake for the purposes of working.
The Supreme Court
The case was taken to the SC who unanimously upheld the CA’s decision.
It said that, whilst “available for work” can count as “working”, this is not the case when the employee is expected to sleep for all or most of the shift and is provided with sleeping facilities. In particular, the SC noted that regardless of how many times a worker is woken up for emergencies during a sleep-in shift, the entire shift does not give rise to NMW under the 2015 Regulations.
The SC paid particular attention to the recommendation made by the Low Pay Commission that sleep-in workers should receive an allowance — and not the NMW — unless they are awake for the purposes of working. When considering what constitutes being “awake for the purposes of working”, the SC held that workers must perform a duty, or have duties to perform.
Fundamentally, the law surrounding the payment of the NMW includes specific provisions for those on sleep-in shifts, and that correct application of the law ultimately meant that this claim had to fail. Going further, the SC was led to consider that some previous judgements with similar facts must also be overruled – these are British Nursing Association v Inland Revenue, Burrow Down Support Services Ltd v Rossiter, and Scottbridge Construction Ltd v Wright.
Note for employers
This ruling only applies where an employee is expected to sleep during their shift and is provided with appropriate sleeping facilities. This means that employers, mainly (but not limited to) the care sector, do not need to pay employees NMW for every hour of their sleep-in shift, just the time the employee is awake for the purpose of working. As this particular case pertains to the care sector, care operators across the country will no doubt breathe a sigh of relief at this ruling, especially as the implications of the SC upholding the claimant’s argument looked set to be substantial.
For care companies, this is the end of the story. Those who do not pay NMW for all of a sleep-in shift don’t need to make changes to how staff are paid, but they also now do not face potential claims for failure to provide the NMW; perhaps most significantly, this particular case cannot again be appealed.