The Supreme Court has dismissed the appeals of overnight care workers Claire Tomlinson-Blake and John Shannon on 19 March 2021, who contended that time spent during ‘sleep-in’ shifts ought to be remunerated at the National Minimum Wage (NMW), even for time during which they were permitted to sleep. The decision will mean that time during which workers are permitted to sleep will continue to be considered as remunerable work only during the time spent awake for the purpose of working. The judgment also provides a decisive definition of ‘work’ in the context of overnight workers.
Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) [2021] UKSC 8
Shannon (Appellant) v Rampersad and another (T/A Clifton House Residential Home) (Respondents) [2021] UKSC 8
Background
The appeals concern the calculation of time spent by two ‘sleep-in’ care workers at their place of work, regarding whether time during which the workers were permitted to sleep is remunerable by the NMW. Tomlinson-Blake was a care support worker who provided care to vulnerable adults in their own home. During night shifts, she was permitted to sleep, while remaining vigilant should an emergency occur. Shannon was an on-call night care assistant at a residential care home. He was provided with free accommodation and a fixed weekly pay, on the condition that he be present between 10pm and 7am to help a night care worker if the necessity arose. Both litigants were contractually required to remain on the premises overnight and were permitted and expected to sleep during this time.
Both litigants’ proceedings made their way separately through the Employment Tribunal and Employment Appeal Tribunal before being heard jointly by the Court of Appeal, in appeals brought by the Royal Mencap Society and Shannon.
The Court of Appeal allowed the appeal with regards to Tomlinson-Blake and dismissed it in relation to Shannon in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad [2019] ICR 241.
In the Court of Appeal Underhill LJ interpreted the National Minimum Wage Regulations 1999, SI 1999/584 (NMWR 1999, SI 1999/584), regs 15 and 16 and National Minimum Wage Regulations 2015, SI 2015/6221 (NMWR 2015, SI 2015/6221), reg 32 to mean that a worker who was required to be at a place of work for the purpose of working was entitled to have the time spent counted for the purposes of the NMW unless they were at home, or they were expected by their employer to sleep on the premises, subject to the possible requirement to undertake a work activity. In this scenario, the worker would be considered ‘available for work’ and thus would only be entitled to remuneration at the NMW rate for hours spent awake for the purpose of working. Consequently, Underhill LJ judged that the Employment Appeal Tribunal had erred in allowing Tomlinson-Blake’s claim to succeed, as she could only be entitled to the NMW for hours she was awake for the purpose of working. The judge upheld the employment tribunal’s view that Shannon was not working except in circumstance where he was called upon to perform work duties.
Tomlinson-Blake and Shannon then appealed to the Supreme Court.
Judgment
Lady Arden gave the leading judgment, with the concurrence of her fellow justices.
The crux of the issue related to the interpretation of the NMWR 2015, SI 2015/6221 in the case of Tomlinson-Blake and the preceding NMWR 1999, SI 1999/584 in the case of Shannon. To this end, Lady Arden made use of recommendations given by the Low Pay Commission (LPC) in 1998.
The LPC is a statutory body established by the National Minimum Wage Act 1998 (NMWA 1998). The government is bound by NMWA 1998 to implement recommendations made by the LPC unless it provides an explanation to Parliament for not doing so. The government accepted LPC’s 1998 report, which recommended that ‘sleep-in’ workers should receive an allowance and not the NMW unless they are awake for the purpose of working.
Lady Arden’s reasoning was that regulations relating to the NMW must be interpreted in line with these recommendations. She therefore concluded that a worker who is permitted to sleep during a shift, who is only required to respond to emergencies, is not entitled to the NMW for this time except for hours spent awake for the purpose of working.
Lady Arden also considered Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172, British Nursing Association v Inland Revenue [2002] EWCA Civ 494 and Scottbridge Construction Ltd v Wright [2003] IRLR 21. She judged these cases were wrongly decided and should be overruled.
Lord Carnwath, with Lord Wilson, agreed with Lady Arden that the appeals ought to be dismissed, and that British Nursing should no longer be regarded as authoritative. He, however, did so under a sperate ground, that the Court of Appeal could not properly have held that the employees were working for their entire shifts, and that it is unnecessary to consider the treatment of particular activities within that period.
Lord Kitchin also agreed with Lady Arden, adding that the effect of the sleep-in provisions of the regulations cannot be avoided by arguing that the worker is performing work while sleeping, when this is done with the permission of the employer. He explained that this would disregard the intentions of the drafter when contemplated in the context of the regulations as a whole.
Issue Date: 19 March 2021
Court: Supreme Court
Jurisdiction: England; Northern Ireland; Scotland; Wales
Related Legislation: National Minimum Wage Regulations 1999, SI 1999/584; National Minimum Wage Regulations 2015, SI 2015/6221; National Minimum Wage Act 1998
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