On-call sleeping in and the minimum wage
In a significant judgment in Royal Mencap Society v Tomlinson, the Court of Appeal considered whether carers who sleep at a client's home, technically being on-call, are entitled to the minimum wage while they are asleep.
The claimant was employed by Mencap and worked as part of a team providing round-the-clock care to individuals with learning difficulties at two residential properties. She worked a mixture of day shifts and overnight sleep-in shifts. The claimant received an allowance for the whole of a sleep-in shift plus one hour’s pay. She was not given any specific tasks during sleep-in shifts but was required to remain at the homes, be available in case her support was needed and intervene if necessary.
The issue was whether she was entitled to the national minimum wage for the duration of her sleep-in shifts. The Employment Tribunal and Employment Appeal Tribunal (EAT) found in favour of the claimant, potentially leaving care providers with an estimated £400m back-pay bill. Mencap appealed.
Court of Appeal Decision
The National Minimum Wage Regulations set out when a worker is to be treated as working and therefore entitled to the minimum wage. The appeal concerned “time work” as defined in the Regulations.
Regulation 32 states:
- Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.
- In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.
The Court of Appeal concluded that workers sleeping-in under this sort of arrangement will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity. The EAT’s decision (according to which tribunals should assess the facts of each case with reference to four specific factors) was flawed because it had been attempting to reconcile previous case law that the Court of Appeal now considered to be wrong.
The judgment will be welcomed by providers in the care sector. If the EAT’s decision had been upheld, the potential historic liability across the industry would have been considerable. This would have created significant uncertainty in the sector and threatened some providers’ financial viability.
Since Mencap have said that in future they will pay full pay for all sleep-in hours, whether working or not, there will be pressure on the government to change the law. Further, Unison are considering an appeal on behalf of their members. This is not over just yet.
For more information on the issues raised above or any other employment related matter, please contact a member of the Employment Team.