Posted on Mar 31, 2021 in Employment by Noele McClelland
Being paid to sleep may sound like the dream for some (pun intended); however, the reality is that for some vocations sleep-in shifts are essential in order to provide around-the-clock care for service users. Although there are many roles which require workers to undertake sleep-in shifts, one of the biggest areas are third sector workers, such as carers.
The controversial judgement of Royal Mencap Society v Tomlinson-Blake has featured in the news recently, the outcome shocking many. Mrs Tomlinson-Blake was a care worker for the charity Mencap. She provided care for two autistic service-users with substantial learning difficulties. The two individuals needed 24 hour care, requiring Mrs Tomlinson-Blake to undertake 9 hour sleep-in shifts for which she received a flat rate of £29.05. I’ll do the maths for you - this works out at £3.22 per hour which is a far cry from the National Minimum Wage (currently £8.72 for workers aged 25 years and over).
At any point during that 9 hour shift, Mrs Tomlinson-Blake could be required to provide support to the service-users if required. For any assistance performed throughout the shift, she would be paid her hourly rate on top of the flat rate. Over a 16 month period, she was only required to provide assistance 6 times throughout the night, therefore receiving the flat rate for the vast majority of shifts.
Mrs Tomlinson-Blake lodged a claim with the Employment Tribunal that workers should be entitled to the National Minimum Wage for sleep-in shifts. Her claim was originally successful and Mencap’s appeal was rejected in at the Employment Appeal Tribunal in 2017. This meant that the charity had to pay National Minimum Wage for each hour, even when the worker was asleep and not providing assistance. This was overturned in the Court of Appeal in 2018, with the decision averring that Mrs Tomlinson-Blake was only entitled to National Minimum Wage for the hours she was performing her duties, not whilst she was resting or asleep.
The case was escalated to the Supreme Court who received the case along with another factually similar case, Shannon v Rampersad. On 19 March 2021 the Supreme Court passed down judgement that time spent asleep could not be construed as “time work” for the basis of the National Minimum Wage Regulations 1999 and 2015. Thus the National Minimum Wage does not apply to the hours spent sleeping; regardless of whether the worker is there for the purposes of being available to provide assistance to their service-user when required.
If Mrs Tomlinson-Blake had been successful in her claim, care providers faced potentially paying back £400 million. It’s no surprise that the third sector is often stretched thin financially, but this headline case has no doubt put pressure on the government to review and implement change to the law surround care workers and the health care profession.
After receiving the judgement Mrs Tomlinson-Blake said, “It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too.” In a time where we have become so aware of how essential the role carried out by carers is, we risk undermining the value of care workers and discouraging the next generation from pursuing a career in the profession.
It is important to remember that this case clarified what is classed as “working time” in relation to the National Minimum Wage legislation. “Working time” is also used in relation to the Working Time Regulations which regulates such matters as daily and weekly rest breaks and the entitlement to compensatory rest. In these cases where a worker is required to stay in a location determined by their employer (such as a service users home) then all the time is classed as working time. It is no wonder that it can be confusing for employers and workers alike.
Noele McClelland is a Partner and Kerri McIver is a Trainee Solicitor in Thorntons specialist Employment Law team. If you have any questions regarding the National Minimum Wage, Thorntons Employment Team would be happy to assist you. Call a member of our Employment Law Team on 03330 430350
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