The Supreme Court stated in its final judgment that workers on sleep-in shifts who are permitted to sleep during their shift and are only required to respond to emergencies, will not be entitled to NMW for hours spent asleep, even if on site.

Last week’s decision has come as a huge relief to employers in the charity and care sector who, if the decision had gone the other way, would have been subject to potentially crippling back-pay liabilities. Mencap released a statement last week, asserting their concern for those companies that could not have survived an alternative result and estimated that the potential liability for the industry could have amounted to circa £400 million.

Background:

Mrs Tomlinson-Blake worked as a care support worker for Mencap and as part of that role would complete 9 hour sleep-in shifts. Mencap paid Mrs Tomlinson-Blake a flat rate for these shifts, during which she would be permitted to sleep but would need to be available to respond to any support the two residents needed. She would sleep on site, in her own room, and if required to work during the night would receive her hourly rate after the first hour of work.

History of the case:

• 2016: Initial claim to the Employment Tribunal

Mrs Tomlinson-Blake brought the first claim to an employment tribunal arguing that all hours spent on sleep-in shifts should be counted as work and therefore should count towards her NMW calculations. The Employment Tribunal upheld her claim and confirmed that she was entitled to NMW for each hour of a sleep-in shift and in addition awarded her 6 years’ of back payments.

• 2017: Mencap Appeal to Employment Appeal Tribunal

Mrs Tomlinson-Blake’s claim was upheld, and she remained entitled to NMW for the hours she worked on sleep-in shifts.

• 2018: Mencap Appeal to the Court of Appeal

The Court of Appeal overturned Mrs Tomlinson-Blake’s claim in its decision that the NMW was only applicable to hours that a care worker spent awake and carrying out their duties, not for the entirety of the sleep-in shift.

• 2021: Mrs Tomlinson-Blake’s appeal to The Supreme Court

Last week, the Supreme Court upheld the Court of Appeal’s decision that if a care worker is permitted to sleep during a shift and is only required to respond to emergencies then only those hours where the care worker is awake and working will count towards any NMW calculation.

Comment

Although the industry now has certainty on this position, there remains a question as to the fairness surrounding sleep-in payment. In its statement, Mencap directs the responsibility on local authorities and the Government to fund sleep-in services and to reform what it believes is unfair and outdated legislation. As it stands, the decision brings clarity for both employers and workers alike in understanding past and future NMW calculations for sleep-in shifts.