Paid to Sleep

07 August 2018

The Court of Appeal in England & Wales have recently handed down the long-awaited decision in the case of Royal Mencap Society v Tomlinson-Blake.

Paid to Sleep

In a welcomed decision for care providers and employers alike, the Court of Appeal on 13th July overturned the decision of the Employment Appeal Tribunal in England, determining that care workers who sleep overnight, at or near their work premises, are not to be paid for time spent sleeping, rather for time spent carrying out work duties only.  

This decision was a huge victory for Mencap as it means the “only time that counts for NMW [National Minimum Wage] purposes is time when the worker is required to be awake for the purposes of working” as opposed to it applying throughout the entire shift.

The primary issue in the case concerned “Sleepers-in” - employees who are required to “spend the night at or near their workplace 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.”

Ms. Tomlinson-Blake, a care support worker who, amongst other things, provides support to two men who are autistic and have significant learning difficulties, requiring twenty-four support, usually worked a day shiftbut was also required to do a “sleep-in” shift between 10 pm – 7am. In the case, she argued that “she was entitled to have the totality of her hours spent sleeping counted as time work for NMW purposes.” 

Both the Employment Tribunal in 2016 and the Employment Appeal Tribunal in 2017, initially found in the worker’s favour, stating that she was “performing the role of a carer during the sleep-in shift, whether asleep or not.” In reaching its decision, the Employment Appeal Tribunal took into consideration the fact that Ms Tomlinson had to “remain present throughout,” “keep a listening ear” and “exercise her professional judgment to determine whether or not to intervene.”

The outcome of these cases would have meant Ms Tomlinson-Blake would have the right to be paid for hours while she was sleeping. Furthermore, the prospect of having to make large back payments to workers would have threatened to bankrupt many providers in the sector. 

However, the Court of Appeal, in overturning the decisions, believed the key question was whether a person’s hours on a “sleep-in” should be counted as time worked even throughout the periods they were asleep. In referring to the National Minimum Wage Regulations 2015, the Court of Appeal stated that “on a straightforward reading” workers “will only be entitled to have their sleep-in hours counted for NMW purposes where they are, and are required to be, awake for the purpose of performing some specific activity.”

The court drew an important distinction between the “two separate kinds of “time work;” “actual work” and the “availability for work” and came to the conclusion that “sleepers-in” are “available for work… rather than actually working.” Therefore “the only time that counts for NMW purposes is time when the worker is required to be awake for the purpose of working.”  

Whilst this decision is not binding in Northern Ireland, it will undoubtedly be highly persuasive to similar cases here and will be of general importance to the local care sector/services community. Legal advice should be sought where your organisation faces similar circumstances.

However, given the wide-reaching consequences, it is conceivable the unions acting on behalf of the care workers, will lodge an appeal to this decision to the UK Supreme Court, whereby another chapter will be written in this contentious issue. Any decision by the Supreme Court will be binding in Northern Ireland.

HM Revenue & Customs are also considering the implications of the Judgment on its Social Care Compliance Scheme, a scheme it launched last year inviting employers to self-assess their back-pay liability and to agree to back pay their workers accordingly whilst avoiding financial penalties and the risk of being publically ‘named and shamed’. It is understood that HMRC, as a result of this Judgement, have subsequently advised those organisations currently within the Scheme that they can suspend their self-assessments pending further advice from HMRC. Whilst this development offers a reprieve for cash strapped organisations many of whom are charities with very limited budgets; Mencap itself have invited the Government to intervene and legislate in this matter to provide funding to care providers who can then pay their care workers for such time. 

Niall McMullan is a Partner in Worthingtons Commercial Solicitors, Belfast, who regularly advises organisations and employers on employment law issues such as National Minimum Wage and the Working Time Regulations. He can be contacted on 028 90 434015 or email niall@worthingtonslaw.co.uk 

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