What can we learn from the ‘sleep-in’ shift/national minimum wage decision?

The Supreme Court’s ruling that National Minimum Wage Regulations do not apply to ‘sleep-in shift time work’ (judgment handed down on 19 March 2021) has brought to an end a long-running debate in the nursing and care sector. The implications of the decision, however, may have repercussions for employers in other sectors, too.

The case of Royal Mencap Society v Tomlinson-Blake turned on whether all of a care worker’s shift (part of which involved staying overnight to sleep on the premises) should be paid at the relevant National Minimum Wage (NMW) rate.

Background

Ms Tomlinson-Blake (“T-B”) typically worked a day shift and a morning shift, for which she was paid appropriately (salaried work). For sleep-in shifts overnight she was entitled to a flat rate of £22.35. T-B claimed that she was required to “keep a listening ear out” during those overnight sleep-in shifts and that accordingly, she should be paid as if awake (ie at the prevailing and relevant NMW rate).

T-B had been successful at Employment Tribunal and the EAT, but had lost in the Court of Appeal.

Tribunal decision

On appeal, the Supreme Court ruled that the regulations were never intended to apply in these circumstances.

In brief, the Supreme Court held:

Only time spent awake for the purposes of working, is eligible for NMW.
The word “awake” should not be isolated from the phrase “awake for the purpose of working”.
All other time spent on site during such sleep-in shifts is not eligible for NMW: “however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes.”

Comment

The judgment has been widely welcomed by employers in the care sector which faced the potential of having to honour huge amounts of back pay.

However, one cannot help but draw comparisons between this and the other big Supreme Court case of last month involving Uber and the gig economy. In the Uber case, the availability time (when a worker is logged into the Uber app but is waiting for a ride opportunity to come up) was not considered separate to the journey itself. Whereas, in this Mencap case, time asleep definitively now does not count towards NMW.

Some of my employer clients in the care sector have chosen to pay NMW for sleep-in shifts, in any event. It may be that this is a way employers can differentiate themselves in a sector where there are staffing shortages. Beyond the care sector, many employers make demands on their staff outside their contracted working hours, whether that be by email, phone or even on WhatsApp group messages. This entire debate has opened up questions for all of us about availability to work and what constitutes ‘fair pay’.