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Asleep on the job?

13 August 18

Employment briefing: reversing earlier case law, the Court of Appeal has denied a national minimum wage claim by a care worker allowed to sleep when not required for duties. But is it the last word?

by Amanda Jones

A vexing matter for care sector employers (and their advisers) for many years has been whether time spent “sleeping” is work and should attract the national minimum wage (NMW). The Court of Appeal appears to have settled this matter for now. However, union-backed claimants may well proceed to the Supreme Court to have the issue finally determined. 

As might be expected, whether a worker has received the NMW will depend on their average hourly rate. This is calculated on the basis of the total remuneration earned over the relevant pay reference period (e.g. daily, weekly or monthly), divided by the total number of hours worked over that period. The number of hours worked will be calculated differently depending whether the worker is salaried, hourly paid, paid based on output or unmeasured.  

On duty, but working?

In Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641 (13 July 2018) (which was joined with two similar cases), a care worker supporting vulnerable adults worked a residential shift from 10pm until 7am, during which no particular jobs were required to be carried out and she was allowed to sleep provided she remained at her place of work and “kept an ear out” in case she was needed to deal with any incidents. She was paid a total of £29.05 for this shift, made up of a flat rate of £22.35 and one hour’s pay (an agreement typical in the care sector). She contended that this pay fell below the NMW as, when accounting for every hour spent at work, it equalled around £3.23 per hour. 

At first instance and at Employment Appeal Tribunal, it was found that the employee was performing work throughout her shift for which she was entitled to be paid the NMW, regardless of whether she was awake and carrying out relevant duties. She was required to be present to carry out her role and would have faced disciplinary action if she was not. Despite the fact that callouts only happened occasionally, when they did happen immediate attention was required. The EAT rejected Mencap’s argument that the employee was not awake and carrying out her duties for the majority of her shift and was therefore not entitled to remuneration for those hours.

The EAT set out that a multifactorial evaluation is appropriate to determine whether a worker is working by merely being present at the workplace (even if asleep), or whether they are “available and required to be available at or near [their] place of work for the purposes of working”. Whilst a multifactorial evaluation is relevant in a number of areas of employment law, this was found at the Court of Appeal (CA) to have been the wrong approach.  

“Safeguarding the sector”

In overturning this decision, and a significant body of case law, the CA held that sleep-in workers are only entitled to the NMW when they are awake and “actually working”, not when they are asleep and “available for work”. This time falls into an exclusion in reg 32 of the NMW Regulations 2015, which specifies that the NMW is only payable during hours “when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”. This plain reading of the regulations was favoured over the EAT’s multifactorial test. 

The CA stated that this approach is limited to the facts of sleep-in workers who are “contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity”.

This decision has been welcomed by employers in the care sector, given the significant financial ramifications that the EAT’s decision was set to impose in terms of both increased staffing costs and claims for up to six years’ worth of back pay. Understandably, it is disappointing news for individual care workers and their supporting trade unions. However, this landmark ruling is widely recognised by those in the sector as a major boost towards safeguarding the ongoing support for vulnerable people and sustainability of the sector. 

Given some of the reaction by various commentators to the CA’s shift to an “employer friendly stance”, it is fair to assume that this may not be the end of the matter. Practitioners advising the care sector will no doubt require to discuss the industrial relations ramifications of this watershed decision with their clients pending any final determination.  

Amanda Jones, partner, Dentons UKMEA LLP

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