A ruling that care workers are only entitled to the national minimum wage for the hours they’re awake and working during overnight shifts is hugely disappointing for members
In the combined appeals of Royal Mencap Society vs Tomlinson-Blake, and Shannon vs Rampersad, the Supreme Court had to determine whether workers who remain at home as part of their shift and residential care workers who “sleep in” are entitled to the national minimum wage for time that is not spent performing work activities
Mrs Tomlinson-Blake is a care support worker and was employed by Mencap between 2004 and 2017. She worked as part of a team providing 24-hour care for two vulnerable adults at their home. As part of her duties, Mrs Tomlinson-Blake worked a “sleep in” shift at the service users’ home. During these shifts she was permitted to sleep, but she had to listen out and be on-hand if the service users required assistance or there was an emergency.
In the 16-month period prior to her Employment Tribunal hearing, her sleep was disturbed six times. She received an allowance of £29.50 per “sleep in” shift. Her case argued that the total number of hours during her “sleep in” shifts should be used to calculate her national minimum wage entitlement. She was successful before the Employment Tribunal and Employment Appeal Tribunal but not in the Court of Appeal.
Mr Shannon was an on-call night care assistant at a residential care home and he received free accommodation plus a payment of £50 per week, which rose to £90. He was required to be present in his accommodation during the hours of 10pm to 7am but he was permitted to sleep.
Mr Shannon asserted that he should have been paid for all the hours he was on call at night. He was in fact rarely called upon during those hours. Mr Shannon was unsuccessful before the Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal.
The Supreme Court upheld the Court of Appeal’s decision and found that workers are only entitled to the national minimum wage for the hours they are awake and working in these scenarios.
The National Minimum Wage is crucial for those in low paid and unstable employment and particularly for some members working in the independent health and social care sector and therefore, this is a hugely disappointing decision.
Head of Legal (Employment)
The government has updated its guidance on the calculation of the national minimum wage following the Supreme Court’s decision. Read the guidance.