Judgment in ‘sleep-in’ wages case expected Friday

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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.”

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5 Responses to Judgment in ‘sleep-in’ wages case expected Friday

  1. Avatar
    Michael 17 Mar 2021 at 2:35 pm #

    Finally!!! Have they just been staying round drinking brandy and eating pork pies for 12 months and will now toss a coin to decide!

  2. Avatar
    Dee 17 Mar 2021 at 3:31 pm #

    there’s no right or wrong here as both sides have their own perspective… but as an employee on the day shift – been awake and actually doing something all day I think I would be rather peeved to know the person who took over at 9pm and was going to go to bed was getting paid the same as me – maybe there needs to be a “on stand by” rate

    • Avatar
      CMG 18 Mar 2021 at 10:23 pm #

      The listening ear is key. Sleep-in staff are provided where night-time support is not always needed, but the client cannot raise the alarm reliably or protect themselves in an emergency. We are on edge because we have to listen out for subtle personalised clues, and decide when to intervene.

      We are contractually obliged to be there all night, and the care provider is contractually obliged to rota a trained worker for these hours. Fulfilling these contracts is work and should be remunerated as such

  3. Avatar
    CMG 18 Mar 2021 at 10:35 pm #

    To the HR specialists from a sleep-in care worker: we have no separate policies and procedures for what to do during the designated sleeping hours. Are we insured? Could we be prosecuted for sleeping through a crisis? If we passed away in the night did we die in service? I’ve been in the sector since 2008 without any answers to such basic questions.

  4. Avatar
    Mike 19 Mar 2021 at 10:33 am #

    It’s simple,if you are at work you need to be paid for each hour, due to the complexity of the sleep in job,the contractor wants the sleeper to give up her/his home life for free??

    summary

    if you are at a place of work you must be paid asleep or not ,a service is being provided, that has to be invoiced for, the main contractors won’t allow there profit margins to suffer? why should the person who is working overnight suffer, it’s laughable really, talk about piss taking ! !

    The pandemic has shown we take our heath industry for granted, it’s high time we examine the true meaning of care costs and pay the staff not minimum wage a proper living wage

    MF

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