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Published 13 July 2018
The Court of Appeal has today handed down its much anticipated judgment in the case of Royal Mencap Society v Tomlinson-Blake. In allowing Mencap's appeal against the judgment of the Employment Appeal Tribunal it held that care workers doing overnight sleep-in shifts are not entitled to be paid NMW for the entire duration of the shift.
The Court looked at the situation where residential staff, both in the care sector and elsewhere, are required to be on-call overnight. The broad issue was whether the entirety of the period spent on the premises under such arrangements must be taken into account in calculating the employer's obligations under the NMW Regulations or only such time as is spent actually performing some specific activity.
The claimant, Ms Tomlinson-Blake, was employed by Mencap to sleep at a service user's home in order to be available to assist the service user if an incident occurred. She was paid a flat rate of £29.05 for the 9 hours she was on shift. She also worked during the day and received £6.70 an hour for that work. The NMW Regulations provide that all workers must receive the NNW or National Living Wage as an average for all hours worked in each pay period, for example, over a month if paid monthly.
The claimant had her own bedroom and was required to keep a "listening ear" out 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 premises. She was required to intervene on six occasions in a 16 month period.
The Court of Appeal held that on a straightforward reading of the NMW Regulations, workers on sleep-in shifts are only entitled to have their hours counted for NMW purposes when they are (and are required to be) awake for the purpose of performing some specific activity.
In giving its judgment the Court also relied on the Report of the Low Pay Commission which led to the enactment of the NMW. The report recommended that the only time that should count for NMW purposes were periods when workers on a sleep-in shift were "awake and required to be available for work".
An appeal in the case of Shannon v Rampersad was combined with the Mencap appeal. This was on slightly different facts but the Court of Appeal also found for the employer in that case, adopting the same reasoning.
This is a very significant and welcome judgment for the care sector. Had organisations been obliged to pay their staff the NMW for the whole of a sleep-in shift it would mean not only increased cost in wages going forward, but also scope for claims for back pay dating back six years.
Unison union (who represented the claimant) has said today that it is considering an appeal to the Supreme Court, so this may not be the end of the matter. We will of course monitor this case and update you with any future developments.
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