Should workers receive payment for sleep-in shifts?
You may have read our previous article on this subject which was written around this time last year. The full article can be accessed by clicking the following link: https://moray-employment-law.co.uk/should-an-employee-get-paid-for-sleeping-on-the-job/
Since writing this article, the case of Royal Mencap Society v Tomlinson-Blake has been taken to the Court of Appeal.
In brief, the background of this case is as follows:
- Ms Tomlinson-Blake was a highly trained carer employed by Mencap to look after two men who required around the clock care.
- She required to stay over some nights and be available to assist the men if required, failing which she was allowed to sleep.
- She received a flat rate fee of £29.05 for a 9 hour night shift which was less than her hourly rate which she received through the day and less than the national minimum wage. She received more pay if she was required to provide more than one hour’s care during her shift.
- She brought a claim for back pay, arguing that the night shift in its entirety was working time and therefore she should have been paid her normal hourly rate.
- The Employment Tribunal agreed with Ms Tomlinson-Blake and awarded her the back pay she claimed.
- The decision was appealed to the Employment Appeal Tribunal, who rejected the appeal and upheld the Tribunal’s decision.
Court of Appeal
Mencap appealed this case again, this time to the Court of Appeal. Their decision was issued last Friday (13th July 2018).
The Court of Appeal carried out a detailed analysis of the legislation and some previous cases in this area, and they overturned the Employment Tribunal and the Employment Appeal Tribunal’s previous decision.
They found that workers required to sleep in under this type of agreement were to be characterised as being available for work rather than actually working. Therefore, the entirety of the night shift was not working time and there was no requirement to pay the worker the minimum wage for every hour unless they were awake for the purposes of working.
In their decision they stated:
“a worker who is, and is required to be, available for the purpose of working at or near his or her place of work is entitled to have the time in question counted as time work for NMW purposes unless
- he or she is at home; or
- the arrangement is that they will sleep (and be given facilities for doing so), in which case only those hours will count when they are, and are required to be, awake for the purpose of working”
The Court of Appeal’s decision means workers in similar situations, required to sleep over during their shifts, will only be entitled to the minimum wage for the hours when they are awake for the purposes of working.
This decision will come as a relief to employers in the care sector. It had been estimated that if the Court of Appeal decision had gone the other way and care providers had required to pay their workers the national minimum wage for each hour on shift, this would have cost the industry approximately £400 million in back pay, and approximately an extra £200 million each year going forward. However, this decision will be disappointing for workers in the care sector, many of whom are already working long hours for minimal pay.
Representatives for Ms Tomlinson-Blake have indicated they may appeal this decision to the Supreme Court, so watch this space and we will keep you updated on any further developments.
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