Employment Cases Update

Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8

Date published: 19/03/2021

The Supreme Court has dimissed appeals against a failure to pay the NMW for hours spent sleeping.

The first Claimant provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to "keep a listening ear out" while asleep and to attend to emergencies, which were infrequent. For each night shift, she was paid an allowance plus one hour's pay at the NMW rate. She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. Her work was time work. Her claim was upheld by the ET and EAT but dismissed by the Court of Appeal. The second Claimant was an on-call night care assistant at a residential care home. He was provided with free accommodation at the care home and paid a fixed amount per week. He was required to be present in the accommodation from 10pm to 7am. He was permitted to sleep during that period, but had to assist if the night care worker on duty required his assistance during those hours. In practice he was rarely called upon. He brought proceedings among other reasons to recover arrears of salary on the basis that he was entitled to be paid the NMW for each hour that he was required to be on-call. His work was salaried hours work. The ET and the EAT dismissed his claim, a decision which was upheld by the Court of Appeal. Both Claimants appealed to the Supreme Court.

The court dismissed the appeals. Lady Arden concluded that the meaning of the sleep-in provisions in the National Minimum Wage Regulations 1999 and the National Minimum Wage Regulations 2015 is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW calculation for time work or salaried hours work unless the worker is awake for the purpose of working.

Read the full text of the judgment and the press release on BAILII or click the links below for the pdf versions.