The Supreme Court will on Friday (19 March) hand down its long-awaited decision as to whether workers who ‘sleep in’ as part of their shift are entitled to the national minimum wage for the duration of their shift.
In Mencap v Tomlinson-Blake in 2018, the Court of Appeal found that care worker Ms Tomlinson-Blake was only “available for work” when she was sleeping in a service users’ home as part of the 24-hour support provided to them, and was therefore not entitled to the NMW.
Sleep-in shifts lasted nine hours and Mencap paid her a flat rate of £29.05 for this. Tomlinson-Blake had her own room and could sleep during the shift, but was required to keep “a listening ear” during the night and provide support or respond to emergencies where needed.
The lower courts had found that Tomlinson-Blake had been working throughout her sleep-in shift and should have been entitled to the NMW for the entire shift. However, the Court of Appeal ruled that she was only entitled to the NMW when she was actually carrying out her duties – such as helping a patient or doing other work – and not when she was sleeping or resting.
Tomlinson-Blake took her appeal against this judgment to the Supreme Court, which heard her case in February 2020.
If it rules in her favour on Friday, care homes or other employers where staff are expected to sleep-in as part of their shift could face large backdated claims for NMW underpayment and fines for breaching the regulations, said law firm Irwin Mitchell.
“This is an important case and organisations on very tight budgets, such as care homes, welcomed the clarity provided by the Court of Appeal. If the Supreme Court reverses this decision, many will be exposed to claims that they have underpaid staff,” said employment lawyer Siobhan Mulrey.
“Individuals who are not paid the correct national minimum wage for the hours worked can recover up to six years underpayments. More significantly, HMRC can impose huge fines on employers who have breached the NMW of up to £20,000 for each underpaid worker.”