A worker can be required to spend the night at work without every hour counting towards the national minimum wage. The distinction in these two care-worker appeals was between a shift spent working and a sleep-in during which the worker was expected to sleep but had to respond if needed.
The two arrangements
Mrs Tomlinson-Blake provided care during the day and also undertook sleep-in shifts. On a sleep-in she had to remain at the house, listen for emergencies and respond when needed, but was otherwise expected to sleep. Disturbances were uncommon. She received a sleep-in allowance and sought to count the whole shift for minimum-wage purposes.
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In the joined appeal, Mr Shannon lived at a care home and had to remain in his accommodation overnight. A night worker could call him for assistance but rarely did. His claim concerned salaried hours under the 1999 Regulations. Mrs Tomlinson-Blake’s sleep-in shifts were time work under the 2015 Regulations.
What the regulations count
The national minimum wage calculation requires the employer to identify the hours that count under the applicable category of work. A different statutory scheme governs working time for other purposes.
The regulations distinguish time spent working from time spent available for work. For a sleep-in arrangement with suitable sleeping facilities, hours of availability count only when the worker is awake for the purpose of working. The relevant provisions for salaried hours and time work had substantially the same effect in these appeals.
The purpose of the sleep-in rule
Lady Arden drew on the Low Pay Commission’s recommendation, accepted by the government. For a worker paid to sleep on the premises, the parties could agree an allowance for the sleep-in. Minimum-wage hours would include the time when the worker was awake for the purpose of working.
The courts below
The tribunal and Employment Appeal Tribunal initially accepted Mrs Tomlinson-Blake’s claim. They treated her continuing responsibility during the night as actual work.
Mr Shannon’s tribunal found that he was not working throughout: he merely supported the night care worker if required. His claim failed under the home exception, and the sleep-in exception also applied. The Employment Appeal Tribunal dismissed his appeal.
The Court of Appeal rejected the whole-shift claims. The special sleep-in rule would serve little purpose if the duty to be available to help automatically made every hour actual work.
Why the Supreme Court dismissed the appeals
Lady Arden emphasised that the statutory question is how many hours count for the minimum wage, not whether every restriction on a worker is work in some other sense. The regulations can treat hours differently from an ordinary description of what happened. Nor does entitlement depend on the value produced for the employer or on whether the employer can say that a duty owed to someone else has been fulfilled.
Read together, the provisions mean that a sleep-in worker who is to be present and sleep, subject only to emergency calls, is not actually working for minimum-wage purposes during the sleeping hours. The worker must be awake for the purpose of working. If the only requirement is to answer emergencies, only the time spent answering a call counts. Even repeated calls do not pull the whole shift into the calculation. Being awake for the worker’s own purposes is not enough; there must be a duty, such as helping with breakfast if asked or waiting to be called to assist.
The frequency with which a worker responds may be relevant to what the arrangements really are. But counting the whole shift simply because the worker must keep a listening ear would remove a genuine sleep-in from the very rule intended to cover it.
The same reasons defeated Mr Shannon’s argument that presence, or enabling compliance with a regulatory duty, was itself work. The Court also refused to consider his new argument that the nine overnight hours were his basic hours and that the availability rules therefore did not apply. It had been raised too late, the Court of Appeal had properly declined it, and it might have required fresh findings of fact.
Earlier cases and the limits of the decision
Someone doing an ordinary night shift does not become a sleep-in worker merely because tasks arise intermittently or they can sometimes take a nap. The question is what the worker is expected to do over the period in question.
Lord Kitchin agreed that British Nursing should no longer be authoritative: the definition of time work and the availability rule must be read together, and the sleep-in exception cannot be avoided by describing expected sleep as work. Lord Carnwath, with whom Lord Wilson agreed, also treated British Nursing as no longer authoritative because the employees could not properly have been found to be working for the whole shift. He reserved his position on some of Lady Arden’s further comments and on how particular home-working activities should be analysed.
Verdict: The Supreme Court unanimously dismissed both workers’ appeals. Neither could count the entire sleep-in towards the national minimum wage. Mr Shannon’s new argument about basic hours was raised too late for the Court to decide it.
Source: Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8
