What does the Mencap ‘Sleep-in’ Supreme Judgement Mean?

19th March 2021 Employment

Tomlinson-Blake v Royal Mencap Society (“Mencap”) is a case that has been running for some time and is a landmark case for the care sector.

The case looked at whether the time that an employee spends sleeping during a “sleep-in”, counted towards National Minimum Wage (“NMW”) calculations.  

Overview

As a brief overview, the employee was a care worker who worked for Mencap providing support for vulnerable adults.  The care worker was assigned during the hours of 10pm until 7am to a sleep-in shift, during which no specific duties of work were instructed, however, she was under an obligation to be on call and ensure that she ‘listened in’, so that if support was needed, she would provide her support and assistance.

In terms of her hourly rate, the care worker was paid a flat rate of £22.35, plus one hour's pay of £6.70 for each shift (£29.05 in total).

The employee submitted a claim in the Employment Tribunal alleging various grounds, including she was owed backdated wages, on the basis that she had not received the NMW for her contractual hours, including the time she had spent sleeping.

Previous decisions

The Employment Tribunal and the Employment Appeal Tribunal concluded in 2015 and 2017 that the care worker should have been paid and was entitled to receive NMW for each hour of the sleep-in shift that was undertaken. 

In 2018, the Court of Appeal allowed an appeal by Mencap and concluded that the care workers were not entitled to receive NMW for hours when they were asleep during their sleep-in shift, and made the distinction that care workers were only ‘available for work’ and were not actually working.

Supreme Court decision

On the 12 and 13 February 2020, the Supreme Court heard Tomlinson-Blake’s appeal and the Judgement of the Supreme Court has been handed down on 19 March 2021.

The judgement means that the time a worker is required to sleep-in, does not count towards the calculation for NMW.

As a result, care providers will not be exposed to the potential liabilities for back pay and other associated liabilities regarding payment for sleep-in shifts. Critically, the position regarding the contractual terms of sleep-in shifts will remain the same.

This is a significant decision for care providers, who will be breathing a huge sigh of relief that they have avoided large financial liabilities in backdated wages claims.

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Jennifer Smith is a Partner located in Manchester in our Employment department

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Laura Pointon is a Senior Associate located in Manchesterin our Employment department

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