In the much-awaited judgment of Royal Mencap Society v Tomlinson-Blake and another case, the Supreme Court has held that sleep-in workers are not entitled to receive the NMW in respect of hours spent sleeping, even though the worker may be required to sleep at or near the workplace. Mencap has said that the decision has saved employers in the care industry in the region of £400 million in potential backdated liabilities.
The Claimant was a care worker who provided care to vulnerable adults at their home. She was permitted to sleep when she worked during the night but was required to remain at the workplace. She had no duties to perform except to attend to emergencies, which arose infrequently, and to “keep a listening ear out” when sleeping. She was paid an allowance for each night shift, but which amounted to less than the national minimum wage.
The Claimant brought proceedings for arrears of wages arguing that she was entitled to be paid the NMW for each hour of her shift, since she was ‘working’ while she was at her work. Her claim succeeded in the Employment Tribunal and in the Employment Appeal Tribunal where it was held that her circumstances did not fall within the exception in section 32 of the National Minimum Wage Regulations, which states that a worker is only to be paid for hours in which they are ‘awake for the purposes of working’– since, in the Claimant’s case, it was interpreted that she was actually working throughout her shift notwithstanding the fact that she may have been entitled to sleep.
The Supreme Court agreed with the Court of Appeal in dismissing the Claimant’s argument finding that while she may have been available for work, she was not ‘working’ for the purposes of the NMW legislation – despite the fact that she may have been constantly on call and had to have a “listening ear” while asleep.
In interpreting the meaning of ‘work,’ Lady Arden stated that not all activity which restricts a worker’s ability to do as he pleases amounts to work for the purposes of the NMW:
“It is clearly not the position that, simply because at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage. There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work”.
In over-ruling a number of previous cases which held that a worker was entitled to the NMW even while asleep on account of being, for example, still subject to requirements of the employer, the Supreme Court dismissed the appeal and concluded that the worker must be “awake for the purposes of working”.
This decision will be welcomed by employers in the care and charitable industry given the clarity that it provides with regards to application the NMW legislation. It also comes at a time, as Mencap have said, when the sector is “already underfunded and stretched to breaking point”.
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