Employment Lawyers Comment On Costly Implications For Employers If Court Of Appeal Judgment Overruled

The Supreme Court will later this week (12/13 February) hear two cases about the National Minimum Wage (NMW) that will impact all employers who engage staff to sleep in as part of their duties.

In 2018, the Court of Appeal overruled previous decisions and, controversially, said that workers who slept for part or all of their shifts weren’t entitled to the NMW unless they responded to a call during the night – even though they had to sleep away from their homes. It said that workers were either available for work or actually working. 

In Mencap v Tomlinson-Blake, Mencap were contracted to provide support and care to vulnerable adults. Ms Tomlinson-Blake and other carers provided 24 hour support to two men in their home. She worked either a day shift or a sleep in shift. 

Sleep in shifts lasted nine hours and she received a flat rate of £29.05 for this.  Ms Tomlinson-Blake had her own room and could sleep during the shift, but was required to keep “a listening ear out” during the night and provide support where needed and to respond to any emergencies.  The need was “real but infrequent” and Ms Tomlinson-Blake had only had to intervene on six occasions during the previous 16 months.  

The employee argued she should receive the NMW for every hour of her sleep in shift.

In Shannon v Rampersad, Mr Shannon was offered a job as an “on call night care assistant” by his friend who owned a care home. He lived on site in a flat and had to be available from 10pm to 7am each night.  He was rarely called upon to help during the night.  Following a TUPE transfer, Mr Shannon claimed that he should have received the NMW for all of his night shifts and that he had been underpaid by £240,000.

The lower courts had found that Ms Tomlinson Blake was working throughout her sleep in shifts and should have received the NMW for those hours, but Mr Shannon was not as he was only available for work (and was not working).

The Court of Appeal however found that both Mr Shannon and Ms Tomlinson Blake were only “available” to work during their sleep in shifts (rather than actually working) and only had to be paid the NMW if they were asked to work during that time.  It took into account a report by the Low Pay Commission, which recommended that workers who were on call and allowed to sleep at their workplace should not have those hours counted for NMW purposes.

Expert Opinion

“Organisations on very tight budgets, such as care homes, welcomed the clarity provided by the Court of Appeal. If the Supreme Court reverses this decision, many will be exposed to claims they have underpaid staff.

“It is worth remembering that individuals who are not paid the correct National Minimum Wage for the hours worked can recover up to six years underpayments. More significantly, HMRC can impose huge fines on employers who have breached the rules of up to £20,000 for each underpaid worker.”
Fergal Dowling - Partner & Director of Legal Services (Commercial Advisory ＆ Disputes)