Sleep-in workers and the National Minimum Wage

Mrs Tomlinson-Blake was employed by Mencap to provide sleep-in care. It has long been customary for sleep-in carers to be paid a flat rate allowance for each shift, rather than for each hour. Mrs Tomlinson-Blake worked from 10pm to 7am, during which time no specific tasks were allocated, but she was expected to remain sufficiently alert to be able to respond during the night, if support was needed. She was paid a flat rate of £22.35 plus one hour’s pay of £6.70 for each shift, a total of £29.05..

However, in light of National Minimum Wage regulations introduced in 2015, Mrs Tomlinson-Blake brought proceedings against her employer, to recover arrears of wages which she contended were due to her. Mrs Tomlinson-Blake claimed that she was entitled to be paid the NMW for each hour of her sleep-in shift.

At first instance, an employment tribunal found in favour of Mrs Tomlinson-Blake, i.e. that she was entitled to be paid the NMW for each hour of her sleep-in shift, whether she was awake or not.

Employers to whom the NMW regulations apply are liable to pay arrears to workers, and to financial and criminal penalties if the remuneration paid is not at least equal to the NMW. Mencap, as employers of a significant number of sleep-in workers, faced potentially catastrophic financial consequences if Mrs Tomlinson-Blake’s claim was upheld, and appealed to the Employment Appeal Tribunal (EAT). Mencap, a charity, and any similar organisation would have unfunded back pay liabilities, which could have brought about a major failure in the care sector.

The financial consequences for personal injury claimants needing sleeping night care, particularly the large number whose damages awards have already been agreed or determined, would be even more serious. The unfunded obligations would be both past and future. There could be no going back to seek further damages, leading to a shortfall of income or capital (or both), absent a genuine and sufficient contingency fund.

The EAT upheld the original tribunal decision and awarded back pay for six years. The tribunal relied on the fact that the care worker was required to be present and could be disciplined if she had left her post.

In 2018, the Court of Appeal allowed an appeal brought by Mencap, and found that sleep-in workers are only entitled to be paid NMW when awake to carry out relevant duties, thus reversing the earlier tribunal decisions.

Mrs Tomlinson-Blake appealed to the Supreme Court.

The NMW regulations set out detailed rules as to the calculation of pay, which differs according to whether the work is classified as:

• Salaried hours work (an annual figure for an ascertainable number of hours);
• Time work (a set number of hours);
• Output work (piecework); and
• Unmeasured work (an unspecified number of hours).

It is notable that in both Mrs Tomlinson-Blake’s case, and the conjoined matter of Mr Shannon, the Court of Appeal rejected an application to introduce a new ground of appeal, namely that regulation 21 was the applicable one, since the employee was required to be present in the accommodation for nine hours each night, and that these hours constituted “basic hours”. The Supreme Court also rejected this application. Thus, there are no findings in relation to this aspect of the NMW regulations.

On the facts of the original EAT case, the Supreme Court considered the fundamental question before it turns, in the case of Mrs Tomlinson-Blake, on the meaning of regulation 32 of the NMW Regulations 2015. The reason given is that a sleep-in shift is appropriately classified as “time-work”.

The Supreme Court found that for the calculation of the NMW, the number of hours worked by Mrs Tomlinson-Blake excluded the hours when she was permitted to sleep unless she was awake for the purpose of working, i.e. that she was not entitled to the NMW for a sleep-in shift.

Mrs Tomlinson-Blake’s appeal was therefore dismissed.