A landmark decision has been made by the Supreme Court regarding Sleep In Workers

The ruling (in the case Clare Tomlinson-Blake vs MENCAP, March 2021), means sleep in workers, for example, care workers, are not entitled to National Minimum Wage (NMW) when they are asleep.

Facts of the case

Mrs Tomlinson-Blake initially claimed at an Employment Tribunal (ET) that she should have been in receipt of national minimum wage for the hours she spent asleep at her employer’s home. Her claim was that the hours spent sleeping (as a sleep in worker) should, in all actuality, be considered working hours for the purpose of national minimum wage.

Mrs Tomlinson-Blake was paid a salary for the work she did during the day. As part of her role, it was expected that she would also carry out additional sleep in shifts from 10pm to 7am. For the sleep-in work Mrs Tomlinson- Blake was paid a flat rate of £22.35, plus one hour’s pay of £6.70 (£29.05 in total).

There were no mandatory duties during the sleep-in shift, however, Mrs Tomlinson-Blake needed to keep a ‘listening ear’ out during the night in case the service user needed her support. If no support was needed, the employee was able to sleep throughout. It was found at the Employment Tribunal that the need to respond to calls during the night were infrequent and amounted to six instances over the preceding sixteen months. When Mrs Tomlinson-Blake was disturbed, the first hour was not paid, but other subsequent waking hours were paid at the national minimum wage.

Tribunal decisions

The Employment Tribunal upheld Mrs Tomlinson-Blake’s claim and agreed that she should have been paid the national minimum wage for the time that she was asleep. The Tribunal advised that a ‘multi factor approach’ should be applied to employees who are on call or are required to sleep over at the employer’s premises to evaluate if, for the purpose of the national minimum wage, the time should be considered working hours.

This led to the common ‘Fish and Chips’ rule. If the employee can leave the work premises to get fish and chips, then the national minimum wage would not apply as the employee had the freedom to leave work and, as such, was not actively engaged in work. However, if the employee would be disciplined for leaving the employer’s premises, then they would be entitled to the national minimum wage even if the employee were asleep.

This was later reinforced by the Employment Appeals Tribunal (EAT) who agreed with the initial Employment Tribunal decision.

The Court of Appeal allowed Mencap’s further appeal on 13 July 2018. However, they upheld the appellants case and agreed that Mencap did not have to pay the national minimum wage to Mrs Tomlinson- Blake when she was asleep. The Court of Appeal found that when Mrs Tomlinson- Blake was sleeping she was only ‘available for work’, not actively engaged in work. Therefore, the time Mrs Tomlinson- Blake was asleep was not working time and, as such, did not qualify for the national minimum wage.

The Supreme Court have since ruled on the case, dismissing Mrs Tomlinson-Blake’s claim, agreeing with The Court of Appeal.

The Court of Appeal and Supreme Court were both in agreement that an employee should be compensated for a sleep-in and should be paid an ‘on call’ rate. However, that rate does not have to adhere to the national minimum wage regulations.

Significantly different rates for Sleep In Workers

This ruling has brought much sought after relief for employers in the care sector, avoiding massive backpay claims. However, the outcome will be extremely unpopular with care staff who were hoping to be compensated fairly for the vital work they do.

In response to the decision Mrs Tomlinson-Blake was interviewed and commented, “This case was never about the money. It was about the principle of treating staff fairly.” elaborating on her views that “The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too.”

Following the Supreme Court’s ruling, there is still uncertainty of how much an employer should pay for a sleep in worker’s shift, with individual employers paying significantly different rates. It is likely that now the Supreme Court has ruled on the case, that the Low Pay Commission will put together guidance of how much an employee should be compensated for a sleep in workers shift when they are sleeping. As has always been the case, any hours an employee is awake and engaged in work, should be paid at the national minimum wage.

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