Today the Supreme Court found that carers’ “sleep-in” hours are outside minimum wage (NMW) regulations. The Court held that the proper interpretation of the NMW regulations was that they did not apply to sleep-in periods. Lady Arden concluded that the sleep-in worker who is merely present should not be treated as working for the purpose of calculating hours which are to be taken into account under the NMW regulations. The mere fact that a person is required to be present during specified hours is insufficient of itself to lead to the conclusion that all of that time is relevant for NMW calculations.
The decision is not however, carte blanche for providers not to offer anything for sleep-in periods, it’s just that fair payment for those periods sits outside the NMW framework. The Local Government Association had made a pragmatic intervention on the point: “most workers required to do a ‘sleepover’ are paid an allowance for the inconvenience (similar to an on-call allowance). These allowances cannot count towards the NMW calculation. If workers are contractually required to sleep on the employer’s premises, as opposed to choosing to do so, then that, including any payment made as compensation, is a matter for both parties to the employment contract.”
Although neither of the two cases considered by the Supreme Court was an injury claim involving care, the judgment nevertheless provides welcome clarity on the much-debated issue of sleep-in care and the rate that may be claimed for providing that as an element of a care regime in a serious injury case.
Lady Arden’s lead judgment pays tribute to the late Lord Kerr who had presided over the Supreme Court hearing but died only a few weeks later. It would have been fascinating to have seen how he would have analysed the relevant regulations and the wider issues raised by this case. Not far below the surface of it there could well be policy concerns about the security of funding and the longer term stability of the provision of care services.
Stuart Furniss leads the Care, Statutory Funding and Rehabilitation subject matter group within the BLM’s Catastrophic Injury Practice Group.
Facts of the two cases
- The first appeal was on behalf of Mrs Tomlinson-Blake, a care support worker employed by Mencap. She provides care and support to 2 men each in a private property (both have autism and substantial learning difficulties). Mrs Tomlinson-Blake was required to carry out a sleep-in shift from 10 pm to 7 am at a rate of £22.55 plus one hour’s pay of £6.70. Whilst no specific tasks were allocated to her, she needed to keep a “listening ear” out during the night. Her claim in the Employment Tribunal (ET) was that she was entitled to have all the hours spent sleeping-in counted as working time for minimum wage purposes . The ET and, on appeal by Mencap the Employment Appeal Tribunal (EAT) upheld her claim but the Court of Appeal decided that she was not entitled to the NMW payments for such shifts.
- The second appeal was brought by Mr Shannon, an on-call night care assistant. He provides care for up 16 elderly residents at a registered residential care home from 10 pm to 7 am. Again, whilst he was able to sleep during those hours, he had to respond to any requests for assistance for which he received free accommodation and set pay per week. His claim in the ET was that the sleep-in hours should be counted as salaried hours work for NMW purposes. The ET dismissed his claim and this was upheld by the EAT and further by the Court of Appeal, dismissing Mr Shannon’s appeal.