Jessica English, senior solicitor, sums up the latest here…
To recap, the lead case in this Supreme Court appeal relates to an experienced care worker, Ms Tomlinson-Blake. Employed to provide care and support to two men, both of whom live in a private property and have autism and substantial learning difficulties, Ms Tomlinson-Blake is required to carry out a 'sleep-in' shift from 10pm-7am. At the time of her original claim to the Employment Tribunal, she was paid a flat rate allowance of £22.35 for the sleep-in, plus one hour’s pay at NMW rate.
During the sleep-in, Ms Tomlinson-Blake is not assigned any specific duties to undertake and can sleep while in the property, however, she is required to keep a 'listening ear' out for if the people she supports require care through the night. The need to provide support, or to 'intervene', during her sleep-in shifts was infrequent – and it was found that she had only been required to do so six times within a 16-month period.
Ms Tomlinson-Blake lodged a claim with the Employment Tribunal (ET) claiming that all of her time spent undertaking a sleep-in shift should be working time for the purpose of the NMW legislation.
Both the first instance ET and the Employment Appeals Tribunal (EAT) upheld Ms Tomlinson-Blake’s claim and confirmed that she should be entitled to count all time during a sleep-in shift as working time for the purpose of the NMW legislation. These decisions were significant for the care sector, but also had wider implications for other sectors where sleep-in style shifts were common (e.g. pub employees/tenants, live-in caretakers).
In light of these decisions, employers were faced with not only adjusting their staffing budgets moving forwards, but also with potential significant back pay claims being made by their current and previous employees for sleep-in shifts previously undertaken.
In 2018, the Court of Appeal allowed Mencap’s appeal against the previous decisions at ET and EAT. The Court of Appeal decided that only time spent actually working during a sleep-in shift was working time for the purposes of the NMW and therefore Ms Tomlinson-Blake was not entitled to NMW payments for the whole of a sleep-in shift. The claim was then appealed to the Supreme Court, the highest court in the UK, for a final decision on this matter.
On 19 March 2021, the Supreme Court issued its judgment following a hearing over a year earlier in February 2020. In short, the Supreme Court upheld the decision of the Court of Appeal and confirmed that the NMW should only be applied where sleep-in workers are awake for the purpose of working.
Lady Arden – who was one of three judges deciding this matter, and who gave the leading judgment – considered and attached significant weight to the recommendations of the Low Pay Commission (LPC), which was set up to advise the government on NMW matters when the National Minimum Wage Act came into force in 1998.
Lady Arden noted that in the early days of the NMW legislation, the LPC had recommended that sleep-in workers should receive an allowance for a sleep-in shift rather than the NMW, unless they were awake during their shift for the purpose of working, and that this recommendation was clearly intended to apply to all workers who were paid to sleep on the premises or ‘sleep-in’.
This decision brings an end to a period of uncertainty for all affected – employers and employees alike. This has been a contentious and emotive matter, particularly with the backdrop of the recent pandemic, however, it is hoped that the Supreme Court’s decision will make the waters around working time and sleep-in shifts less murky, for now at least. Unions have indicated that they intend to lobby the government to change the law in relation to sleep-ins and pay. We will watch this space to see if there is another chapter to add to this ongoing story.
It’s our mission to advise and develop the employment law capability of HR professionals wherever we can, helping HR teams make a real commercial difference to their organisations. That way, you spend less time solving operational issues and more time actioning projects that drive far-reaching change in your company.
Call 0333 006 2929 or email firstname.lastname@example.org today to discover exactly how we can help you.
Senior solicitor, ESP Law Ltd
Jessica is a pragmatic employment solicitor and litigator with a range of experience in both private practice and in-house. Having begun her career in a Trade Union firm she made the move to exclusively advising businesses over 10 years ago. Her breadth of experience includes advising clients in the retail, manufacturing and transport sectors and immediately prior to joining esphr, she worked as an in-house employment lawyer for a national care charity with over 5,000 staff.