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

The Supreme Court has been asked to decide a point about workers’ pay that stands to be of huge significance to carers in the UK.

This stems from two conjoined cases: Royal Mencap Society v Tomlinson Blake, and John Shannon v Rampersad and another (trading as Clifton House Residential Care Home). Neill Thomas, Head of Employment Law at Thomas Mansfield, along with Paralegal Kathryn Tunbridge, represented Mr Shannon. The question for the Supreme Court? Are workers who are required to remain at home during their shift and/or residential care workers who ‘sleep in’ entitled to the National Minimum Wage for time that is not spent actually performing some specific activity?

Background to the case

Mr Shannon was a sleep-in (on-call) care worker in a residential home. He was required to live and sleep in a studio apartment within the care home and had to be on call every day between 10pm and 7am in case he was needed by the night-shift care worker; if a resident fell out of bed, for example. He would sleep when not needed. The arrangement was not dissimilar to a night watchman, who would only be called if the alarm sounded.

Mr Shannon was not paid holiday, so rarely took any. He was paid £50 per week, which rose to £90 per week (£12.86 per night) over the 20- year period of his employment. He had no assets or pension and his life savings came to no more than £3,000.

Shortly after the care home was sold to new owners, Mr Shannon was dismissed. This meant that he had to leave the studio apartment that had been his home for two decades. He brought an employment tribunal claim and was found to have been unfairly dismissed and due some holiday pay. However, he lost his claim for backdated wages. That claim was based on his having been underpaid almost £240,000 over the course of his employment, because he had not received the National Minimum Wage for his contractual hours (which included time spent on-call). The employer had argued that it would have been bankrupted by such an award, which would adversely affect the residents of the care home.

At the Court of Appeal

Mr Shannon appealed (unsuccessfully) to the Employment Appeal Tribunal and then took his case to the Court of Appeal where it was heard together with that of another care worker, Claire Tomlinson-Blake. Her case had been brought on similar grounds. Mrs Tomlinson-Blake had to work occasional sleep-in shifts while caring for two autistic adults who required 24-hour care. She had to keep a ‘listening ear’ while asleep and was asked to intervene six times in 16 months. She was paid £29.05 per night from 10pm to 7am. The Local Government Association intervened in the case arguing that although they supported fair pay for all care workers, the financial consequences for councils would be serious if they had to find money out of existing budgets to fund backdated pay claims.

The Court of Appeal decided that on-call sleep-in workers came within an exception in the National Minimum Wage legislation, which meant that they should only be paid the National Minimum Wage while they were awake working. In practice, even though the care providers had a legal obligation to ensure that sufficient care was in place 24 hours a day, this meant that the carers were not entitled to the statutory minimum wage.

As a result of losing the appeal, Mr Shannon was ordered to pay the care home’s legal costs to defend the case in the sum of about £35,000, even though the care home’s costs were paid through an insurance policy. Mr Shannon’s friends set up a crowd-funding page to help him raise money to pay his legal costs – crowdjustice.com/case/supreme-court-challenge-to-pay/. So far, he has raised just over £6,000.

At the Supreme Court

The case was heard in the Supreme Court on 12 and 13 February 2020 by Lord Kerr, Lord Wilson, Lord Carnwath, Lady Arden and Lord Kitchin. Mr Shannon was represented by Caspar Glyn QC and Chesca Lord. Mrs Tomlinson-Blake was represented by Sean Jones QC, Andrew Edge and Leo Davidson. Mr and Mrs Rampersad was represented by Judy Stone, and the Royal Mencap Society was represented by David Reade QC, Niran de Silva and Georgina Leadbetter.

There were strong legal arguments as to why Mr Shannon and Mrs Tomlinson-Blake should be entitled to the National Minimum Wage. In particular, case law has established the right of certain night workers to be paid even while asleep – in the security industry, for example. The exception in the National Minimum Wage Act, as applied by the Court of Appeal, was argued to have been wrongly interpreted over several years and there was intense legal debate about the wording of the legislation and its application.

The outcome

It will be many months before we receive the Supreme Court’s decision. If the appeal is successful it will have a profound effect on the care industry. On the one hand, there will be certainty at last about sleep-in care workers’ entitlement to pay, but also the likelihood of backdated pay claims. If the appeal is lost, Mr Shannon could be at risk of further legal costs. Whatever the outcome, Mr Shannon says that he is pleased he raised the issue and has no regrets about taking his case to the highest court in the land.

Neill Thomas said, ‘Lawyers always learn something from taking cases to court. In this case, I learnt not to take legislation for granted. It could have been carelessly drafted or it might simply have become outdated through changes in society. You only see this by taking a holistic approach to the whole case and looking at everything in the round. I’m keeping my fingers crossed for Mr Shannon, although I do not envy the task of the Justices who have to make a decision in this case.’

Neill Thomas is a partner in Thomas Mansfield Solicitors Limited and works between his offices in the City, Tunbridge Wells and Guildford.