Our Employment solicitor, Angharad Aspinall, looks at the recent case which found that sleep in care workers may be entitled to the National Minimum Wage.
The Employment Appeals Tribunal (EAT) has recently handed down its decision in the case of Royal Mencap Society v Tomlinson-Blake UKEAT/0290/16, a case concerning ‘sleep in’ shifts. For those unfamiliar with ‘sleep in’ shifts, this involves the worker being required on site during the night to assist if called on but permitted to sleep when they are not required. The case was one of three conjoined cases which were heard together given similarities in their facts. In the main, the issue focussed on whether a worker required to work a night shift permitted to sleep when not required should be paid the National Minimum Wage (NMW) for the entire shift and not only when the worker was called on.
Briefly, the facts of the case of Royal Mencap Society v Tomlinson-Blake concerned a care worker, Ms Tomlinson-Blake who was responsible for vulnerable adults (service users). Each service user required 24-hour care but lived in private accommodation to allow them to lead as independent a life as possible. Ms Tomlinson-Blake was required to work night shifts and be on hand during the night should one of the service users need assistance. However, when she was not required she was permitted to sleep and provided with her own bedroom so she could do so. She was paid a flat rate for the night shift and only paid for any additional hours she was required to work to assist the service user.
The Employment Tribunal upheld Ms Tomlinson-Blake’s claim and found that she should be paid the NMW for the entirety of the night shift and not just the times where she was required to actually work. The EAT agreed with the decision and held that a multifactorial test was required to ascertain whether the entire time was ‘time work’ for the purposes of the NMW. Factors which persuaded the Tribunal in determining that the entire shift was ‘time work’ included Mencap’s regulatory obligation to have someone on the premises; Mencap’s obligation to have someone present at a service user’s home; the responsibility on Ms Tomlinson-Blake throughout the sleeping shift both to be and remain present throughout and to keep a listening ear and exercise her professional judgment to determine whether or not to intervene, and if intervention was necessary to do so straightaway.
This decision is likely to have serious repercussions for the care industry. It is common for many care organisations to only pay a flat rate for ‘sleep in’ shifts and then pay the NMW for time spent actually undertaking any work. Although not every situation involving night shifts will satisfy the multifactorial test and therefore require payment of at least the NMW for the entirety of the night shift, we would still advise care providers to review their night shift arrangements carefully. Factors to take into account will include your obligations to both statutory and contractual, the purpose of the sleep in and the consequences of staff not being present during the entire shift. If you would like further information on how we can help with a review, please do contact the employment team here.
An employment appeal tribunal has decided that care workers required to sleep in at a service user’s home are entitled to be paid the national minimum wage (NMW) for all hours worked, including the hours spent asleep. This decision will have serious consequences for social care. Wage costs may increase for many providers and there could be claims for back pay dating back up to six years. Failure to pay carries criminal penalties and fines, including the potential for doubling back pay arrears.