Judgment has been delivered by the EAT in a group of cases heard as a collective appeal on the issue of care workers’ sleep-in shifts and the National Minimum Wage (NMW). The three cases concerned a very similar issue of whether a carer performing a sleep-in shift was working during the shift and therefore whether they were entitled to receive the NMW. This is an important issue for the care sector as the affordability of paying NMW per hour for every sleep-in shift performed rather than a fixed allowance for the whole night which is adopted by many care sector organisations, is questionable. In considering the three appeals before it the EAT concluded that hours during sleep-in shifts can, in certain circumstances, be taken into account in calculating whether the average hourly rate is less than the NMW. One of the cases in this appeal was Royal Mencap Society v Mrs Tomlinson-Blake, the facts of which we focus on below. Mencap has indicated that it intends to appeal against this decision.
Mrs Tomlinson-Blake, cared for adults with autism and received a flat rate payment of £22.35 plus one hour’s pay (£6.70) for a nine hour sleep-in shift. Mrs Tomlinson-Blake contended that her pay fell below the NMW.
Mrs Tomlinson-Blake had her own bedroom and was required to keep a “listening ear” during the night in case her support was required. She was otherwise free to sleep or use her time as she wished, but she could not leave the service user’s premises.
Mrs Tomlinson-Blake was successful in the Employment Tribunal and Mencap appealed. The EAT found that she was constantly required to use her professional judgement to decide if she was needed to intervene, and she was required to be at a place of work and available to work, even when there were no specific tasks to be performed during the shift.
The EAT particularly identified the following factors to support its conclusion that Mrs Tomlinson-Blake was “at work” even when asleep:
- Mencap’s obligation to have someone on the premises in accordance with the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 12;
- Mencap was required to have someone present to fulfil their obligations to the Council;
The EAT concluded that unfortunately it could not provide the “bright line” clarity and certainty sought by employers on when the NMW is payable and when it is not. Instead a multifactorial approach was endorsed which emphasised the fact sensitive nature of this issue which has to be determined on a case by case basis. It was acknowledged that there are cases where this is a difficult line to draw. However, the EAT did provide some guidance on useful factors to be taken into account when answering the question of whether sleep-ins should be taken into account in the NMW calculation:
- the employer’s purpose such as having someone present due to regulatory or contractual requirements;
- the extent to which the worker is restricted by the requirement to remain on the premises including whether disciplinary action would ensue if they were to leave;
- the degree of responsibility of the worker ie. contrasting a duty to simply make an emergency services call with the position of a night sleeper in the home of a disabled person with a more significant personal responsibility in relation to the night duties that might have to be performed; and
- the immediacy of the need for the worker to provide services or intervene if something untoward occurs or an emergency arises.
Although the law has never been certain in this area there have not been any high profile cases questioning flat sleep-in rates for several years. This judgment does not provide a straightforward test or answer as to whether sleep-ins should “count” for NMW purposes or not and each individual organisation should consider its own circumstances and potential risk carefully. Further appeals are in the pipeline, and this case will alert both employees and unions to this once again at a time when underfunding in the care sector is already creating significant cost pressures.
Employers should now consider taking the following steps:
- Review all contracts to see if there is a risk that workers are not being paid the NMW and identify key areas of exposure;
- Apply the multifactorial guidelines laid down by the EAT to assess the level of potential risk to your organisation and determine if there are any changes in approach that can be made to reduce the risk;
- Consider if the Local Authority will pay more. Negotiating any increase is likely to be a challenge but the Care Act statutory guidance states that “remuneration must be at least sufficient to comply with the national minimum wage legislation for hourly pay or equivalent salary”.
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