A version of this article was first published here in March 2021
The Supreme Court 2021 ruling in the case of Tomlinson-Blake v Mencap, is of particular ongoing relevance to the adult social care sector and has curtailed the financial impact of the National Minimum Wage (NMW) obligations of employers in this sector who provide 'sleep-in' shifts for service users. Hannah Thomas, employment solicitor at FSB Employment Protection, explains what this case means for employers who are care providers.
The Supreme Court ruling in the case of Tomlinson-Blake v Mencap has significant implications for the care sector.
In this case, the Supreme Court was required to consider whether ‘sleep-in time’ should be classified as working time for the purposes of the NMW regulations and therefore require each hour spent on a sleep-in shift whether awake or asleep to be paid at the NMW rate.
What was the ruling?
In interpreting the application of the National Minimum Wage Regulations 2015,. the Supreme Court decided that care workers who are required to sleep-in as part of their job are not entitled to the National Minimum Wage (NMW) for the entire duration of their sleep-in shifts. Instead, they are only entitled to the NMW for the hours during which they are awake and performing work-related tasks. This principle equally applies to workers when they are “on call” i.e. available for work, but not actually working and the only requirement on the worker is to respond to emergency calls. This is the case unless, or until, the worker actually answers an emergency call or attends the person they support. Only the time the worker spends answering the call, or attending the person they support, is included for NMW calculations
The Claimant in the case (Claire Tomlinson-Blake) was a care worker employed by Mencap to support vulnerable adults with severe learning disabilities to live as independently as possible in their privately-owned home. She worked overnight ‘sleep-ins’ for which she was paid a flat rate of £29.05 for an 8-hour shift. The Employment Tribunal and Employment Appeal Tribunal decided that she was ‘working’ for the purposes of the purpose of the National Minimum Wage legislation and this meant she had been underpaid because all her ‘sleep-in’ hours should have counted as time work for national minimum wage purposes. The Court of Appeal overturned this decision and decided she was not entitled to the National Minimum Wage for all time spent on ‘sleep-in’ shifts. The Claimant appealed, but the Supreme Court dismissed the appeal.
Mencap stated that they contested this case at the time because of the devastating unfunded back pay liabilities facing providers across the sector, which was estimated at £400 million.
What does this mean?
Where a worker is on call or undertaking a sleep-in shift, the key question is whether they are actually working (and therefore the time counts as working time for the purpose of the NMW Regulations) or if they are “available for work” (and therefore one of the exemptions in the NMW Regulations may apply and it may not count as working time, except when the worker is actually awake and working).
The decision also underscores the importance of understanding what constitutes "work" under the NMW regulations. For example, the NMW must be paid for care workers in relation to travel time when travelling from one place of work/work assignment to another between service users (except when a worker is taking a rest break);, where this amounts to “work”. Time spent travelling to an appointment from home or from an appointment to home is not to be included.;
It is important to note that the Supreme Court judgment only relates to the scope of “work” for NMW purposes. The meaning of “work” for the purposes of entitlement to rest breaks under the Working Time Regulations is subject to different legislation and caselaw, meaning that a person on a sleep-in shift at their workplace who has to respond to emergencies or other duties is engaged in working time for the purpose of entitlement to rest breaks.
Gov.uk guidance on the NMW has since been updated to reflect this ruling in relation to the NMW and sleep-in shifts.