Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8

Care workers performing sleep-in shifts claimed entitlement to National Minimum Wage for all hours present at work, not just when awake. The Supreme Court held that under the NMW Regulations, sleep-in workers are only entitled to NMW for hours when actually awake for the purpose of working, not for permitted sleeping time.

Facts

Mrs Claire Tomlinson-Blake was employed by Royal Mencap Society as a care support worker providing 24-hour care to two vulnerable adults. She worked sleep-in shifts during which she was required to remain at the premises but was permitted to sleep, subject only to responding to emergencies. She was paid an allowance of £22.35 plus one hour’s pay for each sleep-in shift. She was rarely disturbed during these shifts.

Mr John Shannon was a night care assistant at a residential care home. He was provided with free accommodation on-site and was required to be present from 10 pm to 7 am but was permitted to sleep during that period. He could be called upon to assist the night care worker but was very rarely required to do so.

Both appellants claimed they were entitled to the National Minimum Wage (NMW) for all hours of their sleep-in shifts, not merely for hours when actually awake and working.

Issues

The central issue was how the hours of sleep-in workers should be calculated for the purposes of the National Minimum Wage under the National Minimum Wage Regulations 2015 (for Mrs Tomlinson-Blake) and the National Minimum Wage Regulations 1999 (for Mr Shannon).

Specific Questions

• Whether sleep-in workers who are permitted to sleep during their shifts are entitled to NMW for all hours of the shift or only for hours when awake for the purpose of working.
• The proper interpretation of regulation 32 of the 2015 Regulations and regulation 15 of the 1999 Regulations.

Judgment

The Supreme Court unanimously dismissed both appeals, upholding the Court of Appeal’s decision.

Interpretation of the Regulations

Lady Arden, delivering the leading judgment, held that the regulations must be interpreted in light of the recommendations of the Low Pay Commission (LPC) in its First Report, which the government accepted. The LPC recommended:

For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.

Lady Arden explained that the statutory question was not primarily whether the worker was ‘working’ but rather how their hours of work should be determined for NMW purposes. The regulations create rules that may produce counterfactual results, as indicated by the use of the word ‘treated’ in regulation 17.

Application of Regulation 32

Lady Arden held that the effect of regulation 32(2) of the 2015 Regulations is that sleep-in workers are not performing time work for NMW purposes if they are not awake. She stated:

If the employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation for time work unless the worker actually answers an emergency call.

Overruling Previous Authority

The Court overruled Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172 and held that British Nursing Association v Inland Revenue [2003] ICR 19 should no longer be regarded as authoritative. Lady Arden noted that these earlier decisions had not properly considered the LPC’s recommendations.

Implications

This judgment has significant implications for the care sector and other industries employing sleep-in workers. It confirms that:

• Sleep-in workers are only entitled to NMW for hours when actually awake for the purpose of working, not for the entirety of their shift.
• The allowance system for sleep-in shifts, as recommended by the LPC, remains appropriate.
• Employers and workers should agree an allowance for sleep-in shifts separate from NMW calculations.
• The distinction between ‘working’ and ‘being available for work’ is fundamental to the regulations.

The decision provides clarity for employers in calculating NMW obligations but has been controversial in policy terms, as it means many low-paid care workers receive less than the minimum wage for hours spent at their workplace. The Court acknowledged the importance of carers in society but held that the interpretation of the regulations was clear.

Verdict: Both appeals dismissed. Sleep-in workers are only entitled to the National Minimum Wage for hours when actually awake for the purpose of working, not for the entirety of their sleep-in shifts.

Source: Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8