Carers not entitled to be paid National Minimum Wage for time spent asleep
20 July 2018
Last week, the Court of Appeal handed down their decision in the case of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersand  EWCA Civ 1641, concluding that workers who sleep in overnight are only entitled to be paid for the hours that they are required to be awake to carry out work.
The case applies to those workers who are contractually obliged to spend the night at or near their workplace, and are expected to sleep during that time, but may be woken to carry out work if required
It is possible that the decision could be appealed to the Supreme Court, and Unison (who represented the Claimant) has said that it is considering doing so; in which case, this will not be the end of the matter.
Previous case law and guidance
Prior to this decision, there was a considerable amount of uncertainty surrounding how workers who are required to sleep in at their employers’ premises were treated and the test for deciding whether workers should be paid for this work was not simple.
Previous cases had concluded that the correct test to apply was the 'multifactorial test', in which the court considered various factors including; whether the employer engaged the worker to satisfy contractual or regulatory requirements; the extent to which the worker is restricted by the need to be present; the degree of responsibility taken on by the worker and whether the worker is required to provide services immediately if woken up. When analysing previous case law, it was often difficult to see why some cases fell one side of the line and others not.
In light of the case law, the Government issued updated guidance on the National Minimum Wage (NMW) in 2015, which stated that in some cases, workers were entitled to be paid for time spent asleep. HMRC started to enforce compliance on the basis, and in response to concerns about the potential back-pay liabilities in the care sector, the Government set up the Social Care Compliance Scheme to assist with NMW compliance, details of which are available here. The current NMW guidance will need to be updated following this Judgment but it is currently unclear whether there will be a need for the Scheme to continue.
Whilst not removing this uncertainty in the area entirely (and subject to appeal), the Mencap case does go a considerable way to clarifying what should be considered as 'actually working' for the purposes of the NMW.
The judgment will be a welcome one for care agencies and other employers who could have faced significant back pay liabilities, estimated to be in the region of £400 million in the care sector alone, if the outcome of the case was different. On the other hand, the case will have direct effect on care workers and has already prompted some organisations to call for better pay for care workers. Mencap itself is supporting a change in the law to require sleep-in hours to be paid at a higher rate.
For legal advice in relation to the National Minimum Wage and sleep-in shifts please contact Stephen Oxley.