Court of Appeal overturns landmark decision in the care sector

Today, the Court of Appeal has published its ruling for the case Royal Mencap Society and Claire Tomlinson Blake [20180 EWCA Civ 1641] which confirms that carers who sleep in at a client’s residence who are technically ‘on call’ are not entitled to the minimum wage whilst they sleep.

Last year, the Employment Tribunal (ET) and Employment Appeal Tribunal ruled that Tomlinson was entitled to be paid the National Minimum Wage (NMW) for the entirety of her shift, including time spent asleep. Care England won the right to intervene in the case at the Court of Appeal and aimed to raise new arguments including the need for a workable interpretation of the sleep-in shift regulations that do not give rise to crippling consequences for the sector.

Judge Underhill, the lead judge for the case heard on 20 and 21 March 2018, overturned the previous rulings and decided that workers undertaking sleep-in shifts are only entitled to the minimum wage when they are required to be awake for the purposes of performing a specific activity.

It was noted by the ET that Tomlinson was expected to keep a ‘listening ear’ for any disturbances whilst performing her role. Underhill ruled that every sleep-in worker must keep a listening ear, therefore it does not constitute performing a specific activity. The need to intervene was infrequent during sleep-in hours, with only six occasions occurring over the preceding 16 months.  

Underhill’s conclusion on the general issue is that those who sleep-in are available for work rather than actually working and so, the only time that counts for NMW purposes is the time when the worker is required to be awake for the purposes of working. Commenting on the NMW Regulations, Underhill stated;

Therefore, Underhill allowed the appeal and dismissed the claim meaning care providers had no liability for back pay.

However, the trade union, Unison, is considering an appeal to the Supreme Court.

Aspire Comment

Following the previous rulings which caused chaos and mass panic within the care sector as they compelled care sector employers to fund six years’ back pay, employers in this sector can now breathe a sigh of relief.  The estimated total liability across the UK would have been £400 million which caused fears that many care companies would be forced into insolvency.

Government introduced the Social Care Compliance Scheme during November 2017 which allowed employers to repay money owed to workers, that may have been incorrectly paid workers below NMW for sleep-in shifts, by March 2019 without any penalty. It will be interesting to see whether Government scrap the scheme entirely or wait to see if Unison appeals to the Supreme Court.

Many care employers who have employees undertaking sleep-in shifts have already begun paying NMW to employees who sleep overnight while working and it would seem likely that employees would revolt if employers attempted to reverse this decision.

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