No National Minimum Wage for sleeping on the job
Sleep-in care workers can only count time spent “awake for the purpose of working” for National Minimum Wage (“NMW”) purposes.
In Mencap V Tomlinson-Blake, the Supreme Court provided some useful clarification on the extent to which workers undertaking overnight “sleep-in” shifts are entitled to be paid the NMW.
Mrs Tomlinson- Blake was employed by Mencap as part of a team providing 24-hour care to two vulnerable individuals. Her duties included sleep-in shifts at the individuals’ home. Mrs Tomlinson-Blake’s duties during these shifts consisted solely of keeping out a “listening ear” (and assisting in any emergency that might arise). In practice she was disturbed relatively infrequently – approximately 6 times in the previous 16 months. Mrs Tomlinson-Blake was paid an allowance of £22.35 plus 1 hour’s pay, in recognition of the reasonable expectation of work; she brought a claim for NMW for the full duration of each sleep-in shift.
In common with most care workers undertaking “sleep in” shifts, Mrs Tomlinson-Blake was performing time work i.e. she was paid by reference to the amount of time worked. The Court determined that Mrs Tomlinson-Blake could not be described as performing time work for the duration of her overnight shift and that she was instead merely “available for work”; under Regulation 32 of the NMW Regulations 2015 NMW was therefore only payable in respect of those hours when she was “awake for the purposes of working” i.e. when the worker had duties to perform. This signals a move away from previous case law which had found that sleep-in workers were in fact performing work (rather than being available for work) when on call for the entirety of their shift.
Many employers within the care sector, where sleep-in shifts are commonplace, will breathe a sigh of relief at the outcome of this case. The potential liability for arrears of NMW payments (together with the financial and criminal penalties imposed for failing to pay the NMW) would no doubt have proved too much for many organisations to bear. The question remains how best to protect some of the lowest paid workers, who are (as the Supreme Court expressly recognised at the outset of the Judgement) performing such important work.
