By Hollie Watkins, Banner Jones Solicitors (www.bannerjones.co.uk)
To the dismay of employees, but a decision arguably welcomed by employers, the Supreme Court has recently ruled in cases Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (T/A Clifton House Residential Home) that sleep-in shift workers are not ‘working’ when they are asleep. This in turn means that care workers should only be paid the National Minimum Wage hourly rate on sleep-in shifts when they are awake for the purposes of actively working.
Here, Hollie Watkins of Banner Jones Solicitors, discusses the case and its implications in more detail.
The ruling brings to an end a strenuous four-year legal battle which centred around Mencap, a UK based charity working with people who have learning disabilities. The case threatened to leave care providers with a potential £400 million back-pay bill that would have potentially jeopardised the care of the most vulnerable people in the country.
The cases were brought by two care workers who were sleep-in workers. This means that as part of their shift, they were permitted to sleep either at work, or at a place near work, in case they were required to assist. Whilst working at night, the care workers were to be present in case of any emergencies and provide assistance when required.
In relation to the case of Tomlinson-Blake, The Employment Tribunal and the Employment Appeal Tribunal (EAT), found that she was working throughout the entirety of her shift regardless of the number of hours spent sleeping. Therefore, it was confirmed that each hour of her sleep- in shift were to be included in the National Minimum Wage calculation when calculating her pay. However, in the Shannon case the Tribunal and the EAT dismissed the claim.
Further appeals in both proceedings were heard by the Court of Appeal, which held that neither was entitled to be paid the National Minimum Wage for all the hours of their respective sleep-in shifts.
The Government now faces pressure to reform care laws following the Supreme Court ruling which has caused unrest and disappointment amongst care workers. Whilst Mencap is relieved not to have to pay the huge back payment that could have crippled the charity, Edel Harris, Chief Executive of the Royal Mencap Society, stands with employers who demand the Government ‘do a thorough and meaningful review of the social care workforce’.
Whilst the ruling has provided some sort of clarity for employers and has mitigated the potential huge costs payable in relation to back payments, employees now face uncertainty as to their pay. In the midst of an ongoing global pandemic, this has added extra pressure to care workers across the UK.
If you are an employer or an employee who would like guidance on sleep-in shift work, please contact the Banner Jones Employment Law team.