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‘Sleep in’ care workers and the National Minimum Wage - Shannon v Rampersad and others

David Gray-Jones Wednesday, March 15, 2017

Thomas Mansfield is acting for an individual in a claim for the National Minimum Wage in respect of shifts when he had to be on the employer's premises, but could be asleep when he was not otherwise required. As we prepare for the Court of Appeal hearing, we look at the questions of law, and the wider implications this judgement could have for the care industry.

Does a "sleep in" care worker qualify for the National Minimum Wage during shifts when he is required to be at his or her employer's premises and to carry out duties if required, but may otherwise be asleep?

The National Minimum Wage Act 1998 introduced a minimum hourly rate for workers aged 21 and over.  Regulation 16(1) of the National Minimum Wage Regulations 1999 contains a specific exception for workers who sleep at or near a place of work, and are provided with facilities for sleeping. In this case, those workers are only entitled to the National Minimum Wage when they are awake 'for the purpose of working', and not for the periods they are asleep. It's the correct application of the Regulations - and particularly this exception, that will be considered by the Court of Appeal in Shannon v Rampersad later this year.

Interpreting time that qualifies for the National Minimum Wage

On the whole, time that qualifies for payment at the National Minimum Wage has been broadly interpreted by the employment tribunal, but periods where workers are 'on call' in various states have been problematic from the outset: particularly the question of where to draw the line between those who are working 'simply by being present' - for example waiting for a phone call to come in, and those who are 'just doing nothing' until called upon to do something.

Understandably, various 'on-call' scenarios have formed the basis of challenges in the Tribunals. Nurses available throughout a shift to answer telephone calls were entitled to the NMW for the whole shift, not just when actually answering telephone calls (British Nursing Association v Inland Revenue). So was the night watchman in Scottbridge Construction Ltd v Wright  who was permitted to sleep, watch TV or read while on his shift. Importantly, there have also been recent cases relating to night sleepers in the care home environment - Burrow Down Support Services Ltd v Rossiter and Esparon (t/a Middle West Residential Care Home) v Slavikovska, where the workers fell into the category of working by being present. As such they were entitled to the NMW.

The cases which fall on the other side of the line - where the workers were not entitled to the NMW for the whole of their shift, only for those periods during the shift when they were actually working, include a temporary pub manager required to reside and sleep on premises in free accommodation and was only entitled to the NMW when responding to emergencies (Wray v J W Lees & Co (Brewers) Ltd); equally, in South Manchester Abbeyfield Society v Hopkins, a housekeeper and deputy housekeeper provided with sleeping accommodation in sheltered accommodation for the purposes of being 'on call' were not entitled to the NMW for the whole of the shift.

The Facts of Shannon v Rampersad and others

Mr Shannon, was required to be at his employer's premises and carry out duties if required in support of the 'night care worker' on duty. If not required, our client was able to sleep in accommodation provided by the employer on the premises. After a period where the accommodation was provided free of charge, and our client received a payment of £50 per week, the arrangement changed so that he entered into a tenancy agreement to rent the accommodation, and his weekly wage was raised to cover the cost of the rent. After the care home was taken over by new owners, our client was dismissed, and he brought a claim for the National Minimum Wage in relation to his 'sleep in' shifts.

The Employment Tribunal and the EAT have to date found against Mr Shannon, holding that he falls in the category of workers provided with sleeping accommodation and merely on call as opposed to those working merely by being present. It is our argument that this is incorrect - he was required to be on the premises during certain times, and to assist the night care worker when required. In our argument, the fact that he was allowed to sleep is irrelevant. A further point which, in our submissions, supported the case that he should be paid for the whole period of his shifts was that his presence was required to satisfy his employer's regulatory obligations to provide appropriate staffing levels at the care home.

We have leave to appeal to the Court of Appeal, granted by Lord Justice Elias. Should we succeed, this will have significant implications for many workers in the care industry who are engaged to be on call - equally, there will be implications for the care industry as a whole which will need to rethink how it structures its shift working.

From 1st April 2016, a new, and significantly higher, hourly rate, the National Living Wage was introduced for workers aged 25 and over, with the NMW remaining in place for those aged under 25. However, the same provisions and the exception set out in Reg 16 still apply, so the impact of a decision in favour of Mr Shannon by the Court of Appeal will apply to those entitled to the National Living Wage just as much as to those entitled to the NMW.

Watch this space, as they say…

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