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The Mencap Case: Putting the Sleep-in Shift Issue to Bed?

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About The Author

Adiba Firmansyah (Regular Writer)

Adiba is currently studying for her LLB at Middlesex University, Dubai. Her main areas of interest are human rights and public law. Outside of the law, Adiba enjoys running, cycling and drawing.

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We sleep safe in our beds because rough men stand ready in the night to visit violence on those who would do us harm.

George Orwell

In Royal Mencap Society v Tomlinson-Blake [2018], the Court of Appeal – in  a decision of huge significance for the care sector – clarified the amount of pay to which a worker is entitled when sleeping during a shift. These 'sleep-in’ shifts are very common in the social care sector: carers will sleep overnight at the home of someone they support, allowing them to be on hand in case of an emergency. 

On 13 July 2018, the Court of Appeal unanimously decided that care workers carrying out these sleep-ins are not entitled to the national minimum wage (NMW) for the whole shift, unless they are awake for the purposes of working.                            

This article will consider the impact of the case on the social care sector. It notes that, while the case was arguably rightly decided (in that it interprets the legislation and previous case law using a clear common-sense approach), it does so at the expense of potentially discouraging the care sector from prioritising better pay for carers. As such, this article also examines the other potential approaches that could have been adopted, and potential avenues for future reform. 

Background: The Care Sector That Must Care Too Much 

The care sector is in a precarious position. Social care is increasingly unavailable for elderly and other vulnerable people, as councils cut back on spending and care homes close. Given the severe financial constraints the sector faces, it has awaited the judgment in Mencap [2018] with some trepidation. Indeed, were sleep-in workers to succeed in enforcing their NMW rights, the care sector would be faced with £400 million of backpay for the six years that they have not been paying their employees the NMW: this expensive outcome would pose such a hit to the sector that many charities and care providers would have risked bankruptcy. 

In 2017, this was exactly the news they received: the Employment Appeal Tribunal (EAT) in Royal Mencap Society v Tomlinson-Blake [2017] – Simler J presiding – found in favour of the claimant employee, concluding that the NMW applied to her sleep-in shift. The employer thus challenged this decision in the Court of Appeal.

Royal Mencap Society v Tomlinson-Blake

The Facts 

Claire Tomlinson-Blake (T-B) is a care worker providing support to two vulnerable adults who were within their local council's responsibility. The council contracted out their care to Royal Mencap Society, a charity, which hired T-B to carry out both day shifts and some sleep-in shifts. 

During these sleep-in shifts, T-B did not have any specific tasks to perform, but was obliged to remain in the house and keep a “listening ear” out in case her support was needed. If she was not dealing with any incidents, then she was positively expected to get a good night's sleep during her nine-hour sleep-in shift. 

It is industry practice to pay sleep-in shift workers a flat rate for their whole shift, and T-B was no exception. She was paid a flat rate of £22.35, as well as one hour’s pay of £6.70. However, T-B argued that the whole of her shift, including time asleep, should be regarded as ‘time work’: this way, she would be entitled to the NMW for the entire period of her sleep-in. 

The Court of Appeal in Mencap [2018] thus had to determine whether the sleep-in shifts fell within the definitions of "time work" under both the National Minimum Wage Regulations 2015 (NMWR 2015) and the highly relevant Low Pay Commission Recommendation Reports.

The Judgment

Applying the Regulations

The Court of Appeal in Mencap [2018] were focusing on the NMWR 2015, but also took into account the previous version – the National Minimum Wage Regulations 1999 (NMWR 1999) – that had applied to many past authorities on sleep-in cases. 

One of the more complicated aspects of both sets of regulations is the way in which they categorise different types of work: the only type that is directly relevant to Mencap [2018] is ‘time work’ – defined in Regulation 3 of the NMWR 1999 and Regulation 30 of the newer NMWR 2015 – as work that is paid for by reference to the time worked or to the worker’s output per hour.

When someone undertakes ‘time work’, they are entitled to the NMW for that period. There are two kinds of work that may constitute ‘time work’ for which the NMW is received. Firstly, there is ‘actual work’ – whereby the employee is completing work in the usual manner, as referred to in Regulation 3 of the NMWR 1999. Secondly, there is Regulation 15(1) of the NMWR 1999, which states that ‘time work’ may include time when a worker was ‘available at or near a place or work’. However, there is an exception to this under Regulation 15(1A) of the NMWR 1999 (replicated in Regulation 32(2) of the NMWR 2015): if the worker was ‘permitted to sleep and given suitable facilities for sleeping’, then this should not be treated as time work unless they were awake for the purposes of working.

It follows that Regulation 15(1) and Regulation 15(1A) of the NMWR 1999 were key to the Mencap [2018] case. Indeed, referring to those provisions, Underhill LJ concluded that:

The fact that the case is dealt with as part of the availability provisions necessarily means that the draftsman regarded them as being available for work rather than actually working.

Furthermore, he held that – when distinguishing between actually working and being available for work – it would not be a natural use of language to describe someone as ‘working’ when they are, in fact, positively expected to be asleep throughout a shift. 

It was for these reasons that Underhill LJ reached the preliminary conclusion that sleepers-in can be considered as available for work rather than actually working, and therefore could fall within the terms of the sleep-in exception in Regulation 15(1A) of the NMWR 1999. When he applied this exception to T-B, it followed that she was not undertaking ‘time work’, and was not entitled to the NMW during her shift.

Considering the Recommendations

Having referred to the regulations, the Court of Appeal in Mencap [2018] still found it necessary to look at the Low Pay Commission’s recommendations on the NMW. The Commission’s first report contained the explicit recommendation that workers who were ‘required to be on-call and sleep on their employer's premises’ should not have their hours counted for NMW purposes. This is, of course, directly relevant to situations such as those in Mencap [2018]. Accordingly, the Court of Appeal sought to approach the issues in this case in light of achieving that recommended outcome as far as possible. 

Thus, after considering these recommendations alongside the NMWR 2015, Underhill LJ confirmed his initial conclusion that only when workers were awake, and were required to be, awake for the purpose of performing some specific activity should they should be paid the NMW for the hours they worked. 

Previous Case Law

Sleeping on the Job: Expected or Permitted?

There is a considerable body of case law on sleep-in situations. The authorities differ greatly in their approach to such cases, which is why Underhill LJ in Mencap [2018] did not attempt – as Simler J did in Mencap [2017] – to reconcile the conflicting case law.

Instead, the Court of Appeal in Mencap [2018] clearly favoured regarding one of the defining features of a sleep-in as the expectation that a worker will sleep for the shift — although if they are woken for work, then the NMW would apply to the ‘time work’ they carried out. This point was so essential to the judgment that it allowed Mencap [2018] to be distinguished from one of the leading cases on sleep-in workers: in British Nursing Association v Inland Revenue [2002], the Court of Appeal  held that Regulation 15 (1A) of the NMWR 1999 does not apply to cases where workers were permitted to sleep, but not expected to. Nursing staff were found to have been ‘actually’ working, even though they were permitted to sleep if they were not busy. It followed that the NMW exception did not apply to these workers, and would only apply to cases where they are ‘available for the purposes of working’.

While Underhill LJ in Mencap [2018] broadly agreed with the reasoning in British Nursing [2002], he contended that the decision did not go so far as to establish that a principle that will also apply to situations such as those in Mencap [2018] where the worker is, in fact, expected to sleep. 

As it stands, British Nursing [2002] has generally been treated as authoritative in areas where sleep-in situations were involved. Indeed, in the Scottish case of Scottbridge Construction v Wright [2002], a night watchman was, but for a few duties at the site he attended, otherwise permitted to sleep. The Court of Session held that the entirety of his shift was to be treated as time working under Regulation 3 of the NMWR 1999, in what represented a simple application of British Nursing [2002].

However, Underhill LJ – considering the argument that Scottbridge [2002] confirmed British Nursing [2002] to be authoritative – was quick to dismiss the relevance of both cases to Mencap [2018] on the grounds that:

[T]he judgment in Scottbridge does not advance the argument on the issues of principle.

Underhill LJ’s reliance on the expectation/permission distinction in sleep-in cases finds some support from Walton v Independent Living Organisation [2003], in which the expectation/permission distinction was indirectly affirmed. However, this is outweighed by a number of subsequent cases rejecting it: Burrow Down Support Services v Rossiter [2008], Whittlestone v BJP Support [2013] and Esparon v Slavikovska [2014], as well as the EAT’s decision in Mencap [2017] itself, all appear to be difficult obstacles to Underhill LJ’s position in Mencap [2018]. Consequently, in his judgment, he found these previous authorities to be wrongly decided. 

Underhill LJ’s retention of the expectation/permission distinction contrasts sharply with Simler J’s attempt in Mencap [2017] to reconcile the past case law. In her view, the prior authorities showed that there is no ‘bright line’ approach that could be applied to a person who sleeps in at work: whether they are to be regarded as actually working during the entirety of the period or as only being available for work could only be decided using a ‘multifactorial’ approach.

Despite acknowledging Simler J’s careful analysis, Underhill LJ criticised the multiple factors she sets out as relevant to making such a decision as ‘elusive’, and firmly rejected the reasoning behind the authorities in this area, observing that:

[O]ne advantage of a conclusion that Burrow Down was wrongly decided is that this difficult and intractable case-law can be simply put to one side.

Mencap: A Critical Take

One criticism that can made of the ‘common sense’ approach adopted by the Court of Appeal in Mencap [2018] is the way it focuses almost exclusively on a straightforward reading of the legislation to determine whether T-B fell under the exception in Regulation 15 (1A) of the NMWR 1999. No heed is paid to ‘substantive’ issues, such as whether and to what extent T-B’s claim is otherwise meritorious, or whether any policy considerations underlying the judgment would be furthered by its application in the given case. On the other hand, it should be observed that Underhill LJ did say that this decision cannot be used as general guidance for other types of cases and that the facts must always be looked at individually. 

Mencap [2018] is also defensible on the grounds that it provides clarity for employers by rejecting the multifactorial approach that the EAT relied on in Mencap [2017]. A greater sensitivity to the NMWR 1999, as well as the all-important recommendations, allowed the court to more evenly weigh the intentions of Parliament against the oftentimes conflicting propositions set out in case law. This is something that would not have been possible through a multifactorial approach.

Unfolding Consequences of the Decision

Impact on Carers’ Pay

Since the EAT’s ruling in Mencap [2017], some care providers have been seen to increase pay for carers to the NMW rates. However, following the Court of Appeal’s judgment in Mencap [2018], it is a real possibility that providers could return to paying a flat rate for sleep-in shifts, provided that there are no contractual safeguards preventing such drastic and negative changes to the employees’ terms and conditions of employment. That said, for employers to have budgeted for higher costs only to go back on this decision carries the risk of bad publicity, and severe damages to staff morale may – in turn – be seriously damaged too.

Impact on the Social Care Compliance Scheme

Following the EAT’s ruling in Mencap [2017], the government had set up a Social Care Compliance Scheme to support the payment of NMW for sleep-in shifts. Backed up by advice from Her Majesty’s Revenue and Customs (HMRC), this voluntary scheme for care providers sought to help employers identify what they owe to workers in terms of NMW pay. Once employers identify any arrears, they are given three months to repay the money.

Not having anticipated the shift in approach in Mencap [2018], HMRC has not yet responded to the decision, and providers are left with questions that remain unanswered. Most important of these are on what happens to the scheme: will the government wait for the outcome of a further appeal or immediately close the scheme down? Were either of these to occur, then would care providers be compensated for the backpay they have already handed out to staff? 

Changing the Law?

It seems evident that it is time for reform to clarify the common law’s approach to sleep-in cases. Unison, the trade union which acted on behalf of T-B, criticised the decision as a ‘huge mistake’, and said it was considering an appeal to the Supreme Court. Though this may provide authoritative clarification of the law, the period of wait that this requires risks further uncertainty at a time when the viability of the sector is already being questioned.

It may well be that it is time for Parliament to act. Indeed, there have been recommendations from several care organisations and a notable intervention from the Voluntary Organisations Disability Group, which called on the government to support the national minimum wage by clarifying legislation and making all workers entitled to the national minimum wage, while increasing funding to sustain basic care services.

Reform can also be carried out along internal lines. Employers would do well to change their workers’ contracts of employment to make the position clearer, and refer explicitly to when work is to be carried out during a sleep-in shift.

Conclusion

The task of deciding the employment status of sleep-in workers was a daunting one for the Court of Appeal in Mencap [2018]. For one thing, there is the sheer lack of consistency in the case-law and legislation: Underhill LJ should therefore be applauded for rightly refusing to attempt to reconcile conflicting case-law and instead insisting on a straightforward reading of the regulations and recommendations alongside an overruling of a number of previous cases on sleep-in shifts. 

It is easy to see how Mencap [2018] could, on the face of it, be seen as a grossly unfair decision that cruelly denies care workers the NMW for sleep-in shifts. Indeed, for those individuals who are required to carry out sleep-in shifts, it is important for them to be aware that they may soon be seeing a significant hit to their income.

However, if the Court of Appeal were to have dismissed the appeal, it would have sent the care sector into financial meltdown – providers could close down their services and leave many vulnerable people without the care that they need. Employees in the sector will likely be looking at the distinction between ‘actually working’ and ‘available to work’ with some derision. However, it is arguable that the solution to this problem may not be a legal, but a political one: as long as the government fails to allocate social care the funding it needs to keep services running without compromising staff wages, the problem of insufficient pay for carers will persist.

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Tagged: Employment Law, Gig Economy, Supreme Court

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