Asleep with one eye wide open

Whilst the Covid-19 pandemic has opened our eyes to the hard work and dedication of care workers across the country, it seems that the law hasn’t quite caught up.

On 19 March 2021, the Supreme Court handed down its long-awaited judgement in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad and another (t/a Clifton House Residential Home) [2021] UKSC 8.

Claire Tomlinson-Blake was employed by Mencap as a care support worker and provided 24-hour care to two vulnerable adults in their own home. For hours worked during the day she received a salary, however for sleep-in shifts during the night, she was only paid an allowance of £22.35 in addition to one hour’s pay of £6.70 (the National Minimum Wage in 2015). Although she was permitted to sleep during her overnight shift, she was expected to “keep a listening ear” out and attend to any emergencies. The Court heard that in practice, this was a relatively infrequent occurrence and in the 16 months prior to the Employment Tribunal hearing, she had only been disturbed on around six occasions. For any assistance provided during the night, she was paid an hourly wage on the basis of time work, which as the title suggests, is defined in Regulation 30(a) of the National Minimum Wage Regulations 2015 as “the time worked by the worker”.

John Shannon, represented by Neill Thomas, worked as an on-call care assistant at Clifton House Residential Home and was provided with free accommodation in addition to a weekly allowance of £50, which later rose to £90. In return for free accommodation and a weekly allowance, he was required to stay at the accommodation between 10pm and 7am but he was permitted to sleep during those hours. Mr Shannon could be called on to assist the night care worker, however as in the case of Mrs Tomlinson-Blake, in practice this was a rare occurrence. If he was required to provide assistance overnight, he was paid on the basis of salaried hours.

In an earlier case which related to overnight shift work carried out by call centre workers in their own homes, the Court of Appeal in British Nursing Association v Inland Revenue [2002] EWCA Civ 494 held that employees were working during their whole shifts, notwithstanding that they only received calls intermittently and were permitted to sleep. The Supreme Court overruled this decision and held that the Court of Appeal was wrong, as it had failed to draw a distinction between when employees were actually working and when they were simply available for work.

Whilst the distinction may seem insignificant, in reality it is the difference between an employee being paid National Minimum Wage for the entirety of sleep-in shifts, or being reliant on their employer providing an allowance which may bear little resemblance to the peace of mind they give to the families of those who rely on overnight carers. Regulation 32(2) sets out the relevant provision in respect of time work and provides that “hours when a worker is “available” only includes 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”.

The Supreme Court unanimously dismissed both appeals. Giving the leading judgment, Lady Arden commented at paragraph 45 if “the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call…..It follows that, however many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls, the whole of his shift is not included for NMW purposes. Only the period for which he is actually awake for the purposes of working is included.

Whilst employers may breathe a sigh of relief as they are no longer facing huge claims for backpay, estimated by the Government to be in the region of £400 million, low paid carers continue to provide vital support to allow individuals to live as independently as possible, receiving little in the way of financial security in return.

Further reading:

Supreme Court Rules Sleep-In Care Workers Get Minimum Wage Only When Awake

‘Landmark’ Back Pay Case Could Mean £400 Million For Carers