Court of Appeal rules on sleep in payments

Today the Court of Appeal has sent down a joint judgement on the Royal Mencap Sciety Ltd v Tomlinson-Blake, and Rampersad v Shannon cases concerning the payment of National Minimum Wage across all hours a worker is employed in the workplace and in doing so has over-turned the previous Employment Tribunal ruling, made in 2016, which was upheld at appeal in 2017.

Today’s judgement states very clearly that the NMW does not apply to sleep-in shifts unless the worker is awake for the purpose of working.

The Lord Justices recognised that certainty was needed in an area that carries penalties and potential criminal sanctions. Lord Justice Simler’s key words are:

‘For the reasons which I have given, I believe that sleepers-in, in the sense explained at para. 6 above, are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 32, rather than actually working, within the meaning of regulation 30, and so fall within the terms of the sleep-in exception in regulation 32 (2); and we are not bound by authority to come to any different conclusion. The result is that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working.’

This judgement provides relief to a sector facing a potential £400m back-pay bill. Now, providers will need to ensure that NMW is paid when a worker is awake, but that a flat rate fee will suffice when they are asleep. Live-in care providers which manage their carers working hours using Daily Average Agreements, will also be comforted by this ruling.

This is a sensible judgment which provides much needed stability, although the wider budget pressures remain. Mencap voiced the concerns of the sector when it said:

“Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed. [Mencap]did not want to bring this case. We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and government enforcement action, including serious damage to Mencap’s work in supporting people with learning disabilities. Care workers deserve a better deal and should not be among the lowest paid sectors. We call on government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.”

Unison is considering an appeal to the Supreme Court.

Read more at Civi Society.