A ruling by the Supreme Court has stated that workers who undertake sleep-in shifts are only entitled to the National Minimum Wage when they are awake, carrying out activities linked to their job.
In a landmark case last week, it was ruled that care workers who must sleep at work overnight are not eligible for minimum wage during the hours they are asleep.
This case comes after Claire Tomlinson-Blake took her employer, Mencap, a learning disability charity, to court after claims that she was receiving less than minimum wage whilst completing a “sleep-in” shift.
The court heard that Ms. Tomlinson-Blake was paid £22.35 during 10pm – 7am. In addition, she further received one hour’s pay of £6.70, the then-national minimum wage.
Prior to this case reaching the Supreme Court, an employment tribunal in 2015 were told that Ms. Tomlinson-Blake was expected to keep a “listening ear” whilst sleeping as part of her job. A lawyer representing Ms. Tomlinson clarified that a carer’s job is “to be there to identify when a task arises and to identify who is the person responsible for dealing with it”.
However, Lady Arden, the judge of the Supreme Court ruled, a “sleep-in worker who is merely present is treated as not working for … national minimum wage purposes”.
Commenting on the outcome, Ms Tomlinson-Blake said:
This case was never about the money. It was about the principle of treating staff fairly.
Sleep-in shifts aren’t about just being on call – it’s work. Staff are constantly on guard to protect the most vulnerable in society. The sound of a cough in the night could mean someone’s in danger.
It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too.
Jodie Sinclair, Partner of Bevan Brittan, a law firm, said:
The Supreme Court has now brought to an end this long running issue of whether staff can receive the National Minimum Wage whilst asleep on duty – even where they are woken on numerous occasions during the night.
This will be a welcome decision by most employers, especially given that many in the sector have been seeking additional financial support already via the Infection Control Fund during Covid. As this financial support is ending at the end of the month, many operators would have been faced with an increasing financial burden had the appeal been granted.
However, Ms. Sinclair also explained that this decision could “impact… the ability to attract and retain staff in the sector which would compound an existing significant skills gap.”
Nathan Donaldson, employment solicitor at Keystone Law, added:
The issue of payment for ‘sleep in’ shifts has been a long-standing issue rumbling through the UK judicial system and even the European Court of Justice for a number of years. This has caused the care sector to suffer years of uncertainty and numerous inconsistent and costly decisions regarding the remuneration of its staff.
Though no doubt the Supreme Court’s ruling will be disappointing for some care workers, the decision will at last provide the sector with long term legal and financial certainty.
Going forward, unless care home providers have contractually agreed to pay sleep in wages for their staff, care home employers will now rightly review whether to continue to pay sleep in wages.
Monica Sharma is an English Literature graduate from the University of Warwick. As Editor for HRreview, her particular interests in HR include issues concerning diversity, employment law and wellbeing in the workplace. Alongside this, she has written for student publications in both England and Canada. Monica has also presented her academic work concerning the relationship between legal systems, sexual harassment and racism at a university conference at the University of Western Ontario, Canada.
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