‘Sleep-in’ care workers and National Minimum Wage
The Supreme Court recently handed down its much awaited Judgment in the matter of Royal Mencap Society v Tomlinson-Blake. This confirmed that carers who are ‘sleep-in’ workers are not entitled to National Minimum Wage (NMW) for hours during which: they are required to sleep near to or on site; but, they are not carrying out their working duties.
The claim was initially considered by an Employment Tribunal in 2016. The Tribunal found that a care worker was entitled to NMW for every hour of each ‘sleep-in’ shift as well as back pay for up to six years. The decision was appealed to t he Employment Appeal Tribunal (EAT) in 2017, which decided that the whole time the worker is on the premises for a ‘sleep-in’ shift should be taken into account when calculating NMW, not just the time during which they were carrying out their working duties.
The Court of Appeal overturned the EAT’s decision in 2018. It ruled that workers should only be entitled to NMW for hours during which they are actually carrying out their duties, and not for the hours they are asleep. The Supreme Court has now upheld the Court of Appeal decision (and there is no further right of appeal available).
It was estimated that, if the Claimant’s claims had succeeded, care providers could have faced a bill of around £400 million for backpay owed to care workers, a liability which had the potential to decimate the care sector.
Whilst employers in the care sector will breathe a sigh of relief now that a line has been drawn in the sand over this long-standing issue, it has also been said that changes nevertheless need to be made to a ‘mend a broken system’. Specifically, care providers need look at the remuneration of their workers, making sure that they are properly paid for time when they are sleeping but still at work.