Charities should be exempt from paying the full minimum wage for sleep-in shift workers, lawyers for Mencap argued in the Court of Appeal this week.
Mencap had gone to court to challenge a previous ruling in favour of one of its workers in Royal Mencap Society vs Tomlinson-Blake.
That ruling sent shockwaves through the sector, and care providers have since warned they could be forced to pay £400m overall and made bankrupt as a result.
Claire Tomlinson-Blake took Mencap to an Employment Tribunal in 2016, which ruled that she should have been paid the full minimum wage for time she spent asleep at the house of someone she cared for. The decision was upheld by an Employment Appeal Tribunal last year.
The case has been heard by the Court of Appeal this week, alongside a second case, Rampersad v Shannon, which also refers to sleep-in work. A decision is expected in the coming months.
The case considers whether employees such as Tomlinson-Blake, who work sleep-in shifts, should be entitled to the national minimum wage for the entirety of the shift, not just when they are awake and carrying out relevant duties.
On 20 and 21 March, the court heard how support worker Tomlinson-Blake received a flat rate fee for working a night shift between 10pm and 7am, during which she spent most of the time asleep.
She was paid £29.05 for the shift, which included a flat rate fee of £22.35 plus one hour’s pay of £6.70. If the claimant was required to be awake and performing duties for longer than one hour, she would receive extra pay for those hours.
The claimant also typically worked day shifts, for which she received an appropriate salaried remuneration, either side of the sleep-in shift.
David Reade QC, representing the Royal Mencap Society, said there were only six occasions over a 16-month period when the claimant was required to be awake to perform duties.
He said: “There would be little expectation of doing any work at all. She would get a good night’s sleep.”
However, Sean Jones QC, representing Tomlinson-Blake, argued that although the claimant was not actively performing tasks during the majority of her sleep-in shift, “she has to use her listening ear” to respond.
He said: “The parties have agreed between them that if it is work, you are due an hourly fee. It is all work, so she is entitled to receive an hourly rate.”
Legal representatives from both sides drew upon the National Minimum Wage regulations to support their position.
The National Minimum Wage Regulations 1999 15 (1) says: “In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working.”
Reade used this to support his case but Jones said: “If they wanted to say time work can never be when you are asleep, they could have said that.”
In its written submission to the hearing, the Local Government Association (LGA) said if Mencap’s case were to be refused, councils “would face very significant unfunded historic penalties”.
The LGA referred to the Low Pay Commission (LPC)’s guidance, which states: “Certain workers, such as those who are required to be on-call and sleep on their employer’s premises (e.g. in residential homes or youth hostels), need special treatment. 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."
Lawyers representing the LGA said: “The LGA’s position is that if Parliament wish to change the law, it can ask the LPC to make fresh recommendations. But any such change would be prospective, not retrospective, and the funding implications would have been properly considered.
“This is because the government has committed to “fully and properly fund” all “new burdens” placed on local authorities: this requires a formal “new burdens” assessment.
“In contrast, were the appellant’s appeal to be refused, the LGA’s members would face very significant unfunded historic penalties.”
Social care organisations intervene
Umbrella body Care England, which represents much of the social care sector including many charities, submitted written evidence to the hearing.
Speaking before the hearing, professor Martin Green, chief executive at Care England, said: “If the existing decision of the Employment Appeal Tribunal is upheld it would be a watershed moment for the sector, with profound affects for the viability of residential domiciliary and supported care.
“We argue for a comprehensible, predictable, and workable interpretation of the sleep-in-shift regulations that do not give rise to the potentially crippling multi-million pound consequences for the sector. They should enable providers and their workers to deliver the best care possible.”
A second case, Shannon v Rampersad, was also heard. In this case a Surrey care home worker had failed to convince an Employment Appeal Tribunal that he should have been paid the full national minimum wage for working similar sleep-in shifts.
Rampersad owns Clifton House Residential Home, where the claimant was an on-call night care assistant.
Lord Justice Ryder, Lord Justice Singh and Lord Justice Underhill will reserve their ruling, with a decision expected to be delivered in the coming months.