The Court of Appeal has handed down a landmark judgment in Royal Mencap Society v Tomlinson-Blake where a carer challenged her employer’s policy to pay her a fixed sum, significantly lower than the National Minimum Wage (NMW), for time spent sleeping but technically ‘on call’.
Ms Tomlinson-Blake (Tomlinson) had been employed by Mencap as a Care Support Worker since 2004. Tomlinson and members of her team were required to attend the home of two vulnerable adults with severe learning disabilities throughout the day and night to provide care. Tomlinson was paid the National Minimum Wage (NMW) for her regular working hours however, when carrying out sleep-in shifts between the hours of 10pm- 7am, Tomlinson received a fixed sum of £29.05. This sum consisted of a flat rate fee of £22.35 and one hours pay of £6.70. During these sleep-in shifts Tomlinson was required to stay at the residence and deal with issues if and when they arose. If Tomlinson was required to be awake for more than one hour during a shift she would be compensated for this.
What did the parties argue?
Tomlinson brought a claim to the Employment Tribunal (ET) on the basis that she was entitled to the NMW for all time spent at work, including time spent sleeping, on the basis of the National Minimum Wage Regulations 2015 (Regulations) as she was effectively ‘on-call’.
Mencap contended that Tomlinson was only required to be ‘available’ for work during sleep-in shifts and only carried out actual work if required. Mencap argued this fell outside of the Regulations and therefore Tomlinson was not entitled to be paid the NMW for time spent at work but asleep.
The ET agreed with Tomlinson that all time spent at work should be treated as working time for the purpose of the Regulations. It considered the fact that Tomlinson was required to stay alert during the course of the night to ensure the safety of the two adults as particularly persuasive. Amongst other things, the tribunal also considered Mencap’s regulatory obligation to have someone present during the night to be of importance. Mencap Appealed. The Employment Appeals Tribunal agreed with the tribunal’s findings.
Mencap further appealed to the Court of Appeal (COA) where the Regulations were considered alongside previous judgments. The COA concluded that although a worker who is required to be available for working purposes at or near his place of work should be entitled to have this time counted as work for the purposes of the Regulations, this does not extend to those instances where employees are asleep and not performing a specific activity. In these circumstances only the hours that workers are required to be awake shall be considered under the Regulations.
Employers are likely to breathe a sigh of relief at this judgment. However, the COA has not closed the gap in terms of carers arguing entitlement to the NMW as the result is still that each case should be considered on its own facts.
If you would like to discuss any of the issues in this case, please do not hesitate to contact a member of the Employment Department.
This article is not a definitive statement of the law. It is designed as a free update on the law at the time of publishing. It is not a substitute for legal advice on specific facts and circumstances. BakerLaw LLP and/or the writer accepts no liability or responsibility for reliance on this article and recommends that you seek independent legal advice on your specific circumstances prior to taking any steps.