In Royal Mencap Society v Tomlinson-Blake and John Shannon v Jaikishan and Prithee Rampersad (Trading as Clifton House Residential Home) [2021] UKSC 8, the court held the ‘working time’ did not include time spent asleep for the purposes of the National Minimum Wage Regulations.
The care home workers had argued that they had to be available to provide work while asleep, could be woken and have to perform work and were sleeping away from their homes, therefore this should count as ‘working time’.
Emma Hamnett, partner at Clarke Willmott, said: ‘Lady Arden has ruled that being “present” was not sufficient to count as working time and as such employees or workers who are required to sleep overnight as part of their roles and perform work if awaken, are not to be paid for the time spent asleep during their shifts.
‘It was argued by the Royal Mencap Society that there should be some distinction between time spent working and awake and working and asleep and the two concepts of work are different and should be treated differently in looking at the meaning of “working time”. In other words, to pay a worker for being asleep and doing nothing, isn’t the same as being awake, working and undertaking tasks.
‘The ruling brings an end to long running litigation and will be a relief for the care home sector with an estimated back pay liability of £400m as well as additional costs going forward. Mencap has been paying top up payments for sleep in shifts since 2017 and in a statement today following the judgment has called for Local Authorities to pay top up payments for sleep in shifts and for the government to increase much needed funding for the care sector.’
Neill Thomas, employment lawyer at Thomas Mansfield Solicitors, who represented John Shannon, said: ‘The Court literally interpreted an outdated law which stipulates that workers who are permitted to sleep at or near their place of work should only receive the National Minimum Wage if they perform their duties while being awake.
‘The Court has also swept away the previous decisions in several other cases similar to John’s.
‘It is the court’s role to interpret the legislation in accordance with what Parliament intended. But did the government really want for the worst paid workers to receive so little? Is it right that some of the poorest people in the society are not entitled to the National Minimum Wage?
‘If the government wants to rectify the issue, it will need to change the law. Unfortunately, it is too late for John. But there should be hope for a large number of people across Britain trapped in the cycle of poverty. If only the Low Pay Commission could make a new set of suggestions to Parliament.’
However, Siobhan Mulrey, employment law specialist at Irwin Mitchell, said: ‘Care organisations will breathe a huge sigh of relief as, had the Supreme Court ruled against them, they would have faced huge and, for many, unaffordable liabilities.
‘On the other hand care workers will be very disappointed, particularly as they perform a vital service, yet are some of the poorest paid workers in our society. Although this decision only directly applies to workers whose main purpose is to sleep at or near their place of work, it may open wider arguments about the correct pay for other home workers.
‘It’s possible that home workers will find it more difficult to argue they are working throughout their shifts, rather than simply being “available for work”. So, whilst this decision marks the end of the road for sleep in shift arguments, there’s likely to be further litigation around pay for home workers.’
