National minimum wage for sleep-in care workers

Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home) [2018] EWCA Civ 1641

This is one of the most controversial employment law cases of 2018 as it saw the Court of Appeal hold that a “sleep-in” care worker in residential accommodation was not entitled to the national minimum wage while asleep.

The decision has a big impact in sectors where staff are allowed to sleep at work until called upon. The Court of Appeal held that national minimum wage legislation requires employers to pay the minimum wage to sleep-in workers only when they are awake and actually working.

The facts of this case relate to two care workers (Mrs Tomlinson-Blake and Mr Shannon) who were contractually obliged to spend the night at, or near, their workplaces and were expected to sleep for most of the period but could be woken if their assistance was required. The care workers were paid a fixed sum for the sleepover shift.  The workers in both cases were to be treated as available for work during their sleep-in shift, rather than actually working. The result was that only those hours during which they were required to be awake for the purpose of working counted for national minimum wage purposes.

Unison has lodged an appeal to the Supreme Court, where the union will argue that care workers who sleep on-site and can be called upon at any time should be paid at least the minimum wage.  This is certainly a case to watch in 2019 for many companies in the care sector.

Posted on 6 March, 2019 by Ortolan

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