Sleep-in carers should get minimum wage, top UK court told

Carers in the United Kingdom who have to sleep at their workplace in case they are needed overnight should be paid minimum wage for their whole shift, Supreme Court justices have heard in London.

In a case that could cost the UK care industry billions if it is decided in favour of workers, lawyers told a panel of five judges that carers who work so-called sleep-in shifts are “like a night watchman”.

The court is considering the case of Claire Tomlinson-Blake, a Mencap support worker in the East Riding of Yorkshire.

She is challenging a 2018 Court of Appeal ruling in favour of her employer, the Royal Mencap Society, which concluded that carers were only entitled to minimum wage when they were required to be awake for work – and not while asleep.

That ruling had overturned a 2015 Employment Tribunal decision, which ruled that such workers were entitled to minimum wage payment for the entirety of their shift.

Their job ... is to be there to identify when a task arises and to identify who is the person responsible for dealing with it

by Sean Jones QC

Sean Jones QC, representing Tomlinson-Blake, told the Supreme Court on Wednesday that, during a “good shift”, carers in this situation do not have to do anything.

However, he added: “But their job … is to be there to identify when a task arises and to identify who is the person responsible for dealing with it.”

Jones said those in Tomlinson-Blake’s situation were getting less than minimum wage for the shifts they work, and that being paid the minimum hourly rate was “not a path to riches”.

The Court of Appeal in 2018 heard Tomlinson-Blake received a salary for her full-time job, helping vulnerable adults living in their own homes, and sometimes had to work a sleep-in shift between 10pm and 7am.

For those shifts, she was paid an allowance of 29.05 pounds ($37.58), which included pay for an hour’s work.

If she was woken in the night and had to work for more than an hour, she would receive extra pay for the time worked.

The 2015 Employment Tribunal found she used her “listening ear” and her experience to know when she was needed, and was “working” even when she was asleep.

She was, therefore, entitled to receive an hourly minimum wage, which would have been more than 60 pounds ($78) per shift.

The only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working

by Lord Justice Underhill in 2018, over-ruling the 2015 Employment Tribunal

But in 2018, Lord Justice Underhill, sitting with two other senior judges, said: “I believe that sleepers-in … are to be characterised for the purpose of the regulations as ‘available for work’ … rather than actually working, and so fall within the terms of the sleep-in exception.

“The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.”

Tomlinson-Blake’s appeal is being opposed by Mencap, a charity that works with people with a learning disability.

John Shannon, a Surrey care home worker who failed to convince the Employment Appeal Tribunal that he should have been paid the minimum wage for shifts when he was “on call”, is also bringing an appeal.

Following the Court of Appeal ruling, Care England – the body that represents independent care providers – said the case could have cost the sector 400 million pounds ($520m) in backdated pay and 200 million pounds ($260m) a year from 2020, if the court had ruled workers should be paid the minimum wage.

The Supreme Court hearing is due to conclude on Thursday.