Carers working 'sleep-in shifts' not entitled to national minimum wage

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) [2018] EWCA Civ 1641

Why care?

The case concerns workers who sleep overnight on premises to care for elderly, disabled or otherwise vulnerable people in their own homes. Over the years the case law has been inconsistent over the position of sleep-in time at the employer's premises.

The case

The cases concerned two care workers who were contractually obliged to spend the night at, or near, their workplaces and were expected to sleep for most of the period but could be woken if their assistance was required. In April 2017 the Employment Appeal Tribunal (EAT) decided that the carers, who were required to be present throughout the night, would be entitled to the National Minimum Wage (NMW) whether awake or asleep. While this right had been established by earlier case law, government guidance had been potentially misleading on the issue.

However, in the subsequent Court of Appeal hearing, the Court held that the workers in both cases were to be treated as available for work during their 'sleep-in' shift, rather than actually working and so were not entitled to NMW. Only those hours during which they were required to be awake for the purpose of working counted for NMW purposes.

This means that rather than actively working, workers who are expected to sleep for most, if not all, of their shift at or near their workplace and are provided with suitable facilities for doing so, are to be treated as being ‘available’ for work during those hours and not actually ‘at work’. NMW applies only to time when the worker is required to be awake to carry out relevant activities.

What to take away

Following the 2017 EAT judgment social care providers were concerned about their ability to pay carers the NMW during sleep-in shifts and their exposure to claims for backdated pay. The government introduced a Social Care Compliance Scheme (Scheme) for providers to declare their non-compliance to HMRC and repay staff. Over 800 employers signed up to the Scheme which allows disclosure of potential underpayments without risk of being fined or publicly named. In its first 6 months, it appeared that arrears of over £730,000 were owed to about 480 workers, many of whom were sleep-in carers.

On 7 August 2018 Unison lodged an application for permission to appeal the Court of Appeal decision to the Supreme Court. The House of Commons Library Briefing Paper published on 15 August 2018 suggests that "in the light of the Court of Appeal’s judgment, it appears likely the Scheme will be suspended and possibly discontinued, pending the outcome of Unison’s attempt to appeal to the Supreme Court." For now though, the social care providers' position is still unclear.