It is often a troublesome task for employers to calculate how to correctly calculate pay for workers who undertake sleep-in shifts.
The Employment Appeal Tribunal has recently provided guidance on this, in the case of Tomlinson-Blake –v- Mencap UKEAT/0290/16/DM.
Mrs Tomlinson-Blake is a care worker, caring for vulnerable adults with severe learning disabilities. She received a flat rate payment of £29.05 for a nine hour sleep-in shift. She argued that her pay fell below the National Minimum wage because her wages each month (or pay reference period) fell below the National Minimum Wage when taking into account the number of hours contained within her sleep-in shifts as well as basic shifts.
Employment Judge Burton found in favour of Mrs Tomlinson-Blake at an Employment Tribunal hearing held at Hull in August 2016.
He found that this was not similar to the case of a pub manager who is required to live at the premises for the better performance of his duties.
Mrs Tomlinson-Blake was unable to come and go as she pleased and she would have been disciplined if she had not been on the premises. She was throughout that period at the disposal of her employer, in the sense that they delegated to her their responsibility to meet the residents’ needs.
Judge Burton concluded that: “It was the fact that while performing the sleep in shift, the onus was constantly on her to use her professional judgement and to use her detailed knowledge that she had of the residents to decide when she should intervene in order to meet their needs and when she should not in order to respect their right to privacy and autonomy.”
Mencap appealed the Tribunal’s decision.
The Employment Appeal Tribunal, presided by Mrs Justice Simler, the President of the EAT, dismissed Mencap’s appeal. Mencap unsuccessfully argued that the hours during sleep-in shifts were not to be taken into account in calculating the National Minimum Wage.
They found that Mrs Tomlinson-Blake was carrying out “time work” even when she was asleep, with the result that the time spent on sleep-ins are working hours and form a part of the minimum wage calculation. The following factors were evidence of this:
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 12; provides a regulatory obligation to have someone on the premises
- There is a requirement to have someone present on the service user’s premises to fulfil Mencap’s obligations to the Council
- Mrs Tomlinson-Blake’s responsibility to be present, “keep a listening ear” and use her professional judgement whether to intervene, and if needed, do so straight away
The EAT rejected Mencap’s appeal. They found that Mrs Tomlinson-Blake was performing the role of a carer during the sleep-in shift, whether asleep or not.
The EAT provided important guidance on assessing whether a worker is “working” at any particular time. Factors for consideration are:
- Time spent asleep does not exclude working time
- The purpose of the work undertaken by the worker
- Whether the worker is restricted to the premises
- The responsibility undertaken by the worker
- The immediacy of the worker to provide services
What should employers do?
This is a complicated area that is particularly fact specific. I successfully litigated the original Employment Tribunal case, and therefore have a clear understanding of how the law can apply to employers’ individual circumstances.
Employers in the care sector are often reliant on public-sector contracts that face shrinking budgets, therefore, the prospect of paying their sleep-in workers throughout the entire sleep-in shift may leave great financial difficulties. For some care-sector employers this distinction may well determine whether or not their businesses are altogether financially viable.
Employers who operate staff sleep-in shifts need to review their pay policies and make sure they are compliant with the minimum pay requirements set down by the minimum wage legislation.
Chris Randall is Head of the Employment Law Department at Ringrose Law. He qualified as a Solicitor in 2006 and has always specialized in employment law.