Employment Law Case Update: Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad
Under the National Minimum Wage Regulations 2015 (the NMWR), a worker who is not actually working, but is required to be available for the purpose of doing work, may be treated as working. There are two exceptions to this:
- Where a worker’s home is at or near the place of work, the time the worker is entitled to spend at home is not treated as working time.
- Where there is an arrangement that a worker sleeps at or near a place of work, and is provided with suitable facilities for sleeping, the hours they sleep shall only be treated as working time when they are awake for the purpose of working.
In these cases, two care workers (Mrs Tomlinson-Blake and Mr Shannon) were required under their contract to spend the night at or near their workplace. They were expected to sleep for most of this time, but could be woken if they were needed. Each was paid a fixed sum for the sleepover shift; Mrs Tomlinson-Blake was also paid more if she was needed for more than an hour during the night, and Mr Shannon received free accommodation all year round.
Both argued that they were being underpaid under the NMWR (and its predecessor The National Minimum Wage Regulations 1999) on the basis that the whole shift was time worked.
The cases made it as far as the Court of Appeal, but were unsuccessful.
The court distinguished the facts of these cases from an earlier decision in British Nursing Association v Inland Revenue relating to nurses providing a night service by telephone from home, where the nurses were clearly working throughout the shift and not merely available to work. The work the nurses had done was identical to the work they would do during the day at the employer’s premises.
However, Mrs Tomlinson-Blake and Mr Shannon were expected to sleep on their shift, they were not merely entitled to sleep in the intervals between tasks.
It appears the courts are taking the position that employees who stay at a disabled, vulnerable or elderly person’s house overnight are not entitled to the national minimum wage for the full duration of the shift – merely for the time they are carrying out the duties.
This will clearly be a welcome decision for employers in the care sector, but in an already struggling and low-paid sector, will not be looked upon favourably by employees.
The distinction between whether sleeping time is work or not is still very subtle and so there is still a lack of clarity. It will depend on a number of factors, including whether the employee is expected to sleep, how significant the duties are and the extent to which proper sleeping facilities are provided.
This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice. All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.