Sleep in shifts – the pay debate

Morrish SolicitorsEmployment, Employment Law Blog, Site News, Trade Unions

After a satisfying hard day’s graft at work and having successfully completed another torturously packed train journey home, it is always a lovely feeling to be able to share the company of loved ones during an evening. We get to have a hot shower, put on some comfy pyjamas and enjoy some delicious dinner whilst binge-watching as many thrilling tv shows as possible. However, some loved ones who work within the care sector, they have to be ‘available for work’ and sleep at facilities provided by their employer. They are not afforded the same flexibility or freedom, even though, like me, they have a massive backlog of shows ready to be consumed. Having tried to pacify them many a time during vociferous rants, I was extremely shocked to find out that they were not remunerated properly for ‘sleep-in’ shifts and for every hour they spent awake at work, and that they were earning less than the National Minimum Wage (“NMW”).

Recently, the Court of Appeal (CA) provided its much-anticipated decision in the case of Royal Mencap Society v. Tomlinson-Blake, with regards to the fraught issue of the NMW in the “sleep-in” context. The landmark decision saw the CA overturn the ruling of the Employment Appeal Tribunal (EAT) which had held that carers working sleep-in shifts were entitled to the NMW for every hour of their shift, regardless of whether they were awake and carrying out relevant duties, or asleep. In overturning this decision and a significant body of case law, the CA has held that sleep-in workers are only entitled to the NMW when they are awake and “actually working”. They are not entitled to the NMW when they are asleep, even if facilities for sleeping are provided by the employer as they are then only “available for work”. So, it has removed minimum wage protections from care and support workers on sleep-in shifts.

As has been emblematic in the care sector, Mrs Tomlinson-Blake received a flat rate payment of £22.35 plus one hour’s pay of £6.70 for a nine-hour-long sleep-in shift. She contended that this pay fell below the NMW as, when accounting for every hour spent at work, her wage equated to around just £3.23 per hour. The EAT originally rejected Mencap’s argument that Mrs Tomlinson-Blake was not awake and carrying out her duties for the majority of her shift and was therefore not entitled to remuneration for those hours.

This decision will also naturally be very disappointing for individual care workers and to many, puts the sector even further away from the position it desperately needs to be in, that of being able to offer decent jobs and to stem the growing exodus of its workforce as opposed to now potentially becoming a disaster for the sustainability of social care.

The latest position from the CA is, of course subject to any further appeal to the Supreme Court. Unison were granted permission to appeal in February 2019. This one continues to rumble on. Until it concludes, I shall continue to mollify loved ones on a daily basis and provide the sounding board they need to vent.