30 July 2018 | Comment | Article by Eleanor Bamber
The uncertainty over a worker's entitlement to be paid the national minimum wage when they are required to be "on call" overnight (typically at their place of work where they are able to sleep) is an issue that the care sector has struggled with for many years. Inconsistent decisions in the tribunal have not helped matters.
This uncertainty has, to a large degree, been resolved by the Court of Appeal's decision in the case of Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad (t/a Clifton House Residential Home).
This case involved a fairly typical arrangement with two care workers who were required to spend the night at, or near, their workplaces and were expected to sleep for most of the period. The care workers could be woken if assistance was needed in the night and they were paid a fixed sum to cover the sleep-in shift. They argued that they had been underpaid and should have been entitled to the national minimum wage for all of the hours spent on the sleep-in shift.
The Court of Appeal disagreed with the previous findings of the EAT which had upheld the workers claims. Instead, it found that 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.
The Court of Appeal was influenced by the findings of the Low Pay Commission when seeking to interpret the regulations, in particular the recommendation that workers who were "required to be on-call and sleep on their employer's premises (e.g. in residential homes ...)" should not have the hours in question counted for national minimum wage purposes.
The Court of Appeal was also persuaded by the fact that the arrangement was one where the workers were expected to sleep during the shift, albeit that they may be woken up from time to time if assistance was needed.
Although this case provides much needed clarification of the national minimum wage regulations, existing case law which has decided matters differently may still persist in causing some uncertainty for employers going forward. The case of the night-watchman in Scottbridge Construction Ltd v Wright who was found to be entitled to the national minimum wage for the whole of his overnight shift, despite him being permitted to sleep on a mattress in the office, is a case in point. The difference in that case seems to be the fact that the night-watchman did have significant duties to perform at the start and end of the shift and had a more limited (5 hours) stretch of sleep compared to the carers who were effectively permitted to sleep all night with no actual duties to perform.
The take home message is that this case is certainly welcome news for the care sector which had faced crippling claims for back pay (and large future increases in the wage bill) but is not necessarily a green light for all employers to treat all workers who spend time "on call" overnight in the same way. Each case will need to be examined on its merits to see what side of the line it falls.
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