Opinion

To sleep perchance to earn?

18th September 2018

The National Minimum Wage Regulations 1999 and 2015 (NMWR) and the Working Time Regulations 1998 (WTR) are notoriously complex and the matter of sleeping in whilst “on call” has been the topic of debate for some time. The key question is whether carers who sleep at a client’s home whilst being on call are entitled to receive minimum wage whilst they are asleep or only in respect of that time spent awake and working.

In Royal Mencap Society v Tomlinson Blake, Ms Tomlinson was employed by Mencap as a care support worker, providing care and support to two vulnerable adults who had a number of disabilities including extensive learning difficulties. Ms Tomlinson was highly qualified and extensively trained. She worked from 7:00am to 10:00pm for which she received at least the national minimum wage. In addition, she was also required to be on call whilst asleep at the client’s premises between 10:00pm and 7:00am for which she received pay which amounted to less than the national minimum wage.

Ms Tomlinson argued before the Employment Tribunal (ET) that she was entitled to receive the national minimum wage for the entire period of her shift and not just for periods for which she was required to be awake. The employer argued that Ms Tomlinson was only obliged to be available for work during her sleep-in time and, therefore times when she was asleep did not constitute working time. The Tribunal (with whom the EAT agreed) stated that Ms Tomlinson should have received the national minimum wage for the entire period of the sleep-in shift as she was required to keep a “listening ear”.

The employer appealed the decision to the Court of Appeal. The Court of Appeal took a literal interpretation of Regulation 32 of the NMWR 2015 stating that hours when a worker is available only includes hours where the worker is awake for the purpose of working even if a worker by arrangements sleeps at or near the place of work. The Court of Appeal therefore found that Ms Tomlinson was not entitled to be paid the NMW in respect of the entire shift but only those hours during which she was awake for the purpose of working.

Employer Considerations

Tomlinson Blake is a landmark decision that many employers within the care industry will welcome.

It has been reported that there is an estimated £400million in potentially unpaid NMW payments within the care sector alone, which under this judgment, are no longer considered to be payable. Many within the care sector had expressed concern about the viability of their businesses (and ability to support their vulnerable service users) if they were forced to make those payments. The position is, however, subject to any further appeal to the Supreme Court.

 

 

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