£400 million saved by sleep-in decision
In Case transcript of Tomlinson-Blake v Royal Mencap Society; Shannon v Rampersad and another (t/a Clifton House Residential Home)the Supreme Court decided that sleep-in care workers are entitled to be paid the national minimum wage only when they are awake to work, not when they are sleeping.
Mencap employed Mrs Tomlinson-Blake. She provided care and support to two men with autism and substantial learning difficulties. Mencap paid her the national minimum wage for day shifts. Also, she worked sleep-in shifts from 10 pm to 7 am, during which she received a flat rate of £22.35, plus one hour's pay at the rate of the national minimum wage.
The one hour's pay reflected the possibility that Mrs Tomlinson-Blake might have to get up to carry out some duties, albeit she was rarely awoken during the night. She had no specific tasks to perform at night, but she had to have a "listening" ear in case her support was needed.
The Supreme Court said that, if the sleep-in worker is permitted to sleep during the night shift and is required to respond only to emergencies, the hours included in the national minimum wage calculation for time work or salaried hours work are only those hours where the worker is awake to work. To be available for work, a worker "must be both awake and awake for the purposes of working and not simply awake for [their] own purposes".
What does this mean for the care sector?
Care-sector employers reportedly faced a bill of up to £400 million in back payments had the Supreme Court found differently.
While significant, the decision is specific to its facts. The Supreme Court made it clear that not every worker who is permitted to sleep between tasks is a sleep-in worker and that, depending on the facts, they may be working, as opposed merely to being available for work, even if their work is only intermittent.
Mencap, say that the national minimum legislation covering sleep-in payments is out of date and unfair and they are calling on the Government to reform it. Watch this space.