Employers have been vexed for many years over the question of whether employees who sleep-in are entitled to the national minimum wage (NMW) throughout the entire time they are asleep, or only when they are awake to carry out duties. The point is particularly significant in the care sector where sleep-in shifts commonly arise. The risk of getting this wrong is significant: in addition to repaying workers the underpayment there is a financial penalty of 200% of the total underpayment, and in the most serious cases criminal prosecutions.
An employment appeal tribunal (EAT) considered these matters recently in three combined appeals: Royal Mencap Society v Tomlinson-Blake, Roberts v Focus Care Agency and Mr & Mrs Frudd v The Partington Group.
The EAT held that even if an employee has little or nothing to do during certain hours that does not mean they are not working. Equally, the requirement to be present throughout the sleep-in shift does not mean that they are working. Instead there are a number of potentially relevant factors, including:
- The employer’s purpose in engaging the worker: is the employer subject to a regulatory or contractual requirement to have someone present during the particular period?
- The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer. Does the worker have to remain on the premises throughout the shift?
- The degree of responsibility undertaken by the worker. Is the individual only present to call the emergency services in case of a fire or are they in sole charge of people with disabilities?
- The immediacy of the requirement to provide services if something happens. Does the worker decide whether to intervene or are they simply woken as and when needed?
The EAT approved of the approach taken by the employment tribunal in only one of the three appeals: Royal Mencap Society v Tomlinson-Blake. The Royal Mencap Society (Mencap) employed Ms Tomlinson-Blake to support vulnerable adults, under a contract between Mencap and the local council. Tomlinson-Blake was part of a team of 24-hour care workers, based in the homes of the service users, with a duty to work 'sleep-in' shifts.
No specific tasks were allocated to Tomlinson-Blake during a sleep-in shift, but she was obliged to remain at the house throughout and to listen in case her support was needed. She was expected to intervene where necessary to deal with incidents, to respond to requests for help, and to deal with emergencies that might arise. There were only six occasions over the preceding 16 months when Tomlinson-Blake had to get up during the sleep-in hours. If nothing needed to be done during the sleep-in shift Tomlinson-Blake was entitled to sleep throughout.
The employment tribunal considered the following factors in reaching its decision:
- Mencap’s regulatory obligation to have someone on the premises
- Mencap’s obligation to have someone present in order to fulfil its own contract with the council
- The responsibility on Tomlinson-Blake throughout the sleeping shift to remain present, to keep a listening ear, and to exercise her professional judgment to determine whether to intervene and to do so where necessary.
The tribunal concluded that Tomlinson-Blake was working throughout the whole sleep-in shift and so was therefore entitled to the NMW for those hours. The EAT agreed with the tribunal's decision and its approach.
An important Court of Appeal case on the same issue was recently postponed from June this year to March 2018, and affected employers will be watching carefully for its outcome. In the meantime any employer who engages people on sleep-in shifts should look very carefully at whether they should be paying the NMW all night long.
Holly Cudbill is an associate in the employment law team of Blake Morgan