Care providers will be breathing a sigh of relief as the Court of Appeal in Mencap v Tomlinson-Blake has held that carers who sleep at a client’s home and are technically “on call”, are not entitled to the minimum wage whilst they are asleep.
As the Court of Appeal noted in its Judgment:
“It is very common in the care sector for workers to agree to “sleep in” overnight at premises where elderly, disabled or otherwise vulnerable people live on the basis that they can be called on if assistance is required in the night but otherwise have no duties. This will typically be in return for a fixed amount, with an entitlement to further pay if the worker is in fact called on. Residential staff, both in the care sector and elsewhere, may also be required to be “on call” overnight.”
In both cases that the Court of Appeal was considering in this appeal, the workers were contractually obliged to spend the night at or near their place of work on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity.
In the Mencap case, a care worker supporting vulnerable adults worked a sleep-in shift from 10pm until 7am during which no specific tasks were allocated, but there was a continuing obligation to remain at her post and keep an ear out in case she was needed to deal with any incidents. She was paid a total of £29.05 for this shift, made up of a flat rate of £22.35 and one hour’s pay.
In the previous EAT decision, the EAT considered that employees who were carrying out sleep in shifts, who are on standby for the duration of their shift, were engaged in “time work” and were therefore entitled to be paid the national minimum wage for the duration of their shift rather than just for the time when they are awake and carrying out duties.
The Court of Appeal has overturned the decision of the EAT and decided that workers sleeping under this sort of arrangement will only be entitled to be paid the national minimum wage for the hours that they are, and are required to be, awake for the purposes of performing some specific activity.
In doing so, the Court of Appeal referred to the First Report of the Low Pay Commission in 1998, which stated that for workers who are paid to sleep on their work premises, workers and employers should agree their allowance as they do now. But workers should be entitled to the national minimum wage for all times when they are awake and required to be available for work.
The Court of Appeal conducted an analysis of the previous authorities on this issue but reached the conclusion that some of those previous authorities had been incorrectly decided.
The Court of Appeal ultimately concluded that “sleepers-in” as Lord Justice Underhill referred to them as, should be characterised as being available for work, rather than actually working. The result being that the only time that counts for national minimum wage purposes is a time when the worker is required to be awake for the purposes of working.
Howes Percival employment law partner Simon DeMaid comments:
“This is an important case for the care sector as it limits the care worker’s entitlement to the national minimum wage to only those periods where they are awake and actually performing duties rather than when they are asleep and technically on call. Having said that the Court of Appeal did make it clear that this only applies to cases that fall within the “available for work” category (such as the sleep-in cases) within the national minimum wage legislation, rather than the “actual work” category and that it will therefore be necessary to establish where the line is drawn in other “on call” cases in the future.”