The Supreme Court has spoken on whether sleep-in workers should receive a minimum wage during their shifts in Royal Mencap Society v Tomlinson-Blake.
How is the number of hours to be calculated for the purposes of the National Minimum Wage (NMW)?
There are two joined cases that were considered by the Supreme Court: the case of Mrs Tomlinson-Blake who carried out sleep-in shifts for the Royal Mencap Society (Mencap) and Mr Shannon who was an on-call night care assistant at a registered residential care home.
The two cases considered similar but different legislations in that the case of Mencap concerned the National Minimum Wage Regulations 2015 ('2015 Regulations') and Shannon considered its predecessor legislation the National Minimum Wage Regulations 1999 ('1999 Regulations).
Mrs Tomlinson-Blake did sleep-in shift for specified hours. She was permitted to sleep during this period but was required to remain at the home of the two vulnerable adults for whom she cared throughout her sleep-in shift but she had no duties to perform during the night shift except to keep a listening ear out. If there was an emergency she was required to attend to it. She had only been disturbed six times in the period of 16 months preceding the hearing.
Mrs Tomlinson-Blake brought proceedings arguing, among others, that she was entitled to be paid a NMW for each hour of her sleep-in shift. The employment tribunal agreed with her and Mencap's appeal to the EAT was dismissed on the basis that she was working during the sleep-in shift even though she was allowed to sleep during this period.
Mr Shannon was an on-call night care assistant. He was required to be at a residential care home from 10pm to 7am but he was permitted to sleep during this period. Mr Shannon's claim on the same basis failed at both ET and EAT.
When both cases jointly reached the Court of Appeal, the Court of Appeal allowed the appeal in the case of Mrs Tomlinson-Blake and dismissed Mr Shannon's appeal.
Low Pay Commission Reports
An issue of great importance to this case is the reports of the Low Pay Commission ('LPC') which is an important aid to the interpretation of the 1999 Regulations (and also 2015 Regulations) because the government largely accepted the recommendations of the LPC.
The first report of the LPC contained a specific provision for sleep-in shifts which stated:
"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" (para 4.34)
This informs regulation 15(1) of the 1999 Regulations which stated:
"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."
The above provision was subsequently amended (the amendment not material to this case) and the 1999 Regulations were entirely revoked by its successor the 2015 Regulations. Regulations 30 and 32 of the 2015 Regulations deal with the meaning of time work and time work where worker is available at or near a place of work.
"30. The meaning of time work
Time work is work, other than salaried hours work, in respect of which a worker is entitled under their contract to be paid –
(a) by reference to the time worked by the worker;
(b) by reference to a measure of output in a period of time where the worker is required to work for the whole of that period; or
(c) for work that would fall within sub-paragraph (b) but for the worker having an entitlement to be paid by reference to the period of time when the output does not exceed a particular level.
32. Time work where worker is available at or near a place of work
(1) Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home.
(2) In paragraph (1), hours when worker is 'available' only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping."
Supreme Court judgment
Lady Arden's interpretation of the LPC Report was that sleep-in workers should receive an allowance and not the NMW unless they were awake for the purposes of working and it did not contemplate that a person in the position of a sleeper-in could be said to be actually working if he was permitted to sleep. Given that the government had accepted such recommendations, the purpose of the sleep-in provision in the 1999 Regulations for sleep-in workers was to implement that recommendation.
The basic proposition of the sleep-in workers under regulation 32(2) of the 2015 Regulations and 15(1) of the 1999 Regulations is that they are not doing time work for NMW purposes if they are not awake – not only are they not doing time work if they are asleep but they are also not doing time work unless they are awake for the purposes of working. In other words, only the period for which the worker is actually awake for the purposes of working is included.
As did the Court of Appeal, the Supreme Court overruled the case of Burrow Down Support v Rossiter  ICR 1172 which concerned a night sleeper security guard. He could sleep when his duties required him to be awake and had to spend 15 minutes reporting at the beginning and end of his shift and to assist serving breakfasts to residents although the evidence was that he was not disturbed during the night. The EAT agreed with the employment tribunal that he was working for the entire shift.
The Supreme Court went further to overrule the case of British Nursing Association v Inland Revenue  EWCA Civ 494 (which the Court of Appeal stopped short of doing). This case concerned a call centre worker who when not answering the phone was only required to hold themselves ready to take calls when the telephone rang. The Court of Appeal in this case agreed with the tribunal finding that the workers were working on the night shift even though the work was intermittent and they were permitted to sleep. The Supreme Court observed that the tribunal in British Nursing was not entitled to make this finding and that the Court of Appeal made an error in upholding that finding.
The Supreme Court took a step further in also overruling Scottbridge Construction v Wright  IRLR 21 where the worker was a night watchman on an overnight shift and although he was required to deal with telephone and security alarms at any time he was almost always sleeping during his shift. The Court of Session, applying the case of British Nursing, held that working included being on call and that therefore regulation 15(1) did not apply.
The fundament of regulation 15(1) on which Lady Arden placed great emphasis was that the 1999 Regulations draw a basic distinction between working and being available for work. The arrangements covered by regulation 15 are only those where the principal purpose and objective of the arrangement is that the employee will sleep at or near the place of work, and responding to any disturbance during the time allocated for sleep must be subsidiary for that purpose or objective.
The Supreme Court concluded that a sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW purposes and the fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working.
The decision was not a surprise given the clear language used in both the 1999 and 2015 Regulations and the intent of those legislations shown by the LPC Reports. It will also come as a huge relief to the care sector which, had the decision gone the other way, would have faced claims that may have put the entire sector in financial jeopardy.
The decision goes much further than the Court of Appeal in bringing clarity to the law by overruling all three previous decisions on this issue: Burrow Down; British Nursing and Scottbridge. This is a welcome move as reconciling all of these authorities was starting to become stretched and contrived. The clarity was also brought to the distinction between working and being available for work, and the EAT's sequential approach to answering the question was rightly called out as being erroneous.