UK SC | Whether residential care workers who ‘sleep in’ are entitled to national minimum wage for time that is not spent actually performing some specific activity?

United Kingdom Supreme Court: The Bench of Lord Kerr, Lord Wilson, Lord Carnwath, Lady Arden and Lord Kitchin dismissed the appeals and overruled the decision of the Court of Appeal in British Nursing.

Background

The facts of the case are such that Mrs Tomlinson-Blake was a highly qualified care support worker who provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent. For each night shift, she was paid an allowance plus one hour’s pay at the National Minimum Wage i.e. NMW rate. Mrs Tomlinson-Blake’s case was that of time work wherein each of the hours of the sleep-in shift should be included in the calculation of her entitlement to the NMW based on NMW 2015 Regulations, 2015 (hereinafter referred as 2015 Regulations). She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. The employment tribunal (i.e. ET) held that during the sleep-in shift she was performing time work whether she was awake or not. On appeal to the Employment Appeal Tribunal (i.e. EAT) held that Mrs Tomlinson-Blake was working throughout the entire shift as she was constantly on call and on that basis it was not necessary to consider the sleep-in exception.

Mr Shannon was an on-call night care assistant at a residential care home. He was provided with free accommodation at the care home and paid a fixed amount per week. He was required to be present in the accommodation from 10 pm to 7 am. He was permitted to sleep during that period, but had to assist if the night care worker on duty required his assistance during those hours. In practice he was rarely called upon. He relied on NMW Regulations, 1999 (hereinafter referred as 1999 Regulations) and brought proceedings to recover arrears of salary on the basis that he was entitled to be paid the NMW for each hour that he was required to be on-call. Mr Shannon’s work was salaried hours work. The ET held that Mr Shannon was not working throughout his shift and simply provided support to the night care worker if required to do so hence the claim failed as his accommodation constituted his “home”. On appeal to the EAT appeal was dismissed holding that Mr Shannon could not claim the NMW because of the home and sleep-in exceptions.

On a further appeal in both cases, the Court of Appeal allowed the appeal in relation to Mrs Tomlinson-Blake and dismissed it in relation to Mr Shannon.

Relevant Brief Introduction of NMW

 It was introduced by the National Minimum Wage Act 1998 (“the NMWA 1998”). It is a single hourly rate (with a lower rate or rates for certain workers) fixed by a government minister following a report from the LPC. The crucial question for an employer to whom the NMWA 1998 applies is whether the remuneration he is paying to his workers is at least equal to the NMW because, if it is not, he is liable to pay arrears and to financial and criminal penalties. In order to ascertain whether an employer is paying the NMW, there has to be a calculation of the worker’s hourly pay, and so there are detailed rules as to what payments or benefits may be taken into account and what deductions may be made

What is Time Work and Salaried Hours Work

If the employer pays the worker a salary calculated on an annual basis for an ascertainable number of hours, it is salaried hours work as per Regulation 4 of the 1999 regulations and regulation 21 of the 2015 regulations; if he pays the worker by reference to a set number of hours, and not by way of salary, it is time work as per regulation 3 of the 1999 regulations and regulation 30 of the 2015 regulations. In the case of the NMW, there are exceptions to the hours that may be counted. In the case of time work and salaried hours work, there is a “home” exception. A worker, if not actually working but who is available for work, may not count time when he is available if he is at home. For the same two types of work, there is also the “sleep in” provision now contained in, , regulation 32 and regulation 27 of the 2015 regulations respectively.

Analysis and Observations

The Court in terms of statutory interpretation observed that it is that if at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage. There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work. The objectives of the NMW as a social and economic measure helps to redress the law of supply and demand where there may be market failure, and the worker is not able to obtain basic recompense for his labour, but there are no doubt other policy objectives which it serves.

The Court further observed in terms of calculation of hours that  as per regulation 17, the hours of work in the pay reference period are the hours worked or treated as worked by the worker as determined in that period “… (b) for time work, in accordance with Chapter 3”. The use of the word “treated” in regulation 17 of the 2015 regulations underscores that there will be occasions when hours are not treated as hours worked for the purpose of the regulations even though a different number of hours might have been determined to be worked in the absence of that provision. 

The Court observed that the purpose of regulation 32(2) of 2015 regulations, which like its predecessors is to implement the LPC recommendation about sleep-in shifts ie. sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working, and that recommendation was repeated in later reports of the LPC, the contemplation of the regulations in relation to time work is that a sleep-in worker cannot actually be working for NMW purposes if the arrangement is that he is to be present and sleep on the premises during his hours of work subject only to emergency calls. Accordingly, regulation 32(2) should be treated as applying to all such workers doing time work.

It was also observed that the expression “awake for the purpose of working” is a single phrase. The word “awake” is not to be read on its own. Thus, there are separate regulations which have to be read together so that the rules produce a harmonious whole.

It was observed that the meaning of the sleep-in provisions in the 1999 regulations and the 2015 regulations is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW tcalculation for time work or salaried hours work unless the worker is awake for the purpose of working.

The Court observed that judgments Burrow Down Support Services Ltd v. Rossiter [2008] ICR 1172, British Nursing Association v. Inland Revenue [2002] EWCA Civ 494 (“British Nursing”) and Scottbridge Construction Ltd v. Wright [2003] IRLR 21 were wrongly decided and should be overruled.

The Court observed that when performing a night shift, she i.e Tomlinson Blake slept-in by arrangement at her place of work and was provided with suitable facilities for doing so. She was expected to intervene when necessary but the need to do so was infrequent. The Court of Appeal was right to hold that, as a sleep-in worker, Mrs Tomlinson-Blake was only carrying out time work when she was required to be awake for the purpose of working. So too, Mr Shannon’s appeal must be dismissed. He was a salaried hours worker who was required to be on-call at night to assist a night care worker when necessary. He was provided with accommodation and was very rarely asked to assist. Regulation 16(1) and (1A) of the 1999 Regulations, as amended in 2000, applied to him, and he was only carrying out salaried hours work when he was actually called on.

The Court observed that, in the case of each appeal, the time when by arrangement Mrs Tomlinson-Blake and Mr Shannon were permitted to sleep should only be taken into account for the purpose of calculating whether they were paid the NMW to the extent that they were awake for the purposes of working and the entire shift did not fall to be taken into account for this purpose

Judgment

The Court held that in view of the above,

it is enough to dispose of Mrs Tomlinson-Blake’s appeal to this court. When performing a night shift, she slept-in by arrangement at her place of work and was provided with suitable facilities for doing so. She was expected to intervene when necessary but the need to do so was infrequent. The Court of Appeal was right to hold that, as a sleep-in worker, Mrs Tomlinson-Blake was only carrying out time work when she was required to be awake for the purpose of working. So too, Mr Shannon’s appeal must be dismissed. He was a salaried hours worker who was required to be on-call at night to assist a night care worker when necessary. He was provided with accommodation and was very rarely asked to assist. Regulation 16(1) and (1A) of the 1999 Regulations, as amended in 2000, applied to him, and he was only carrying out salaried hours work when he was actually called on.

Lord Carnwath, Lord Wilson and Lord Kitchin agrees with Lord Arden that the appeals should be dismissed and that British Nursing[supra] should no longer be regarded as authoritative.[Royal Mencap Society v. Tomlinson Blake, on appeal from: [2018] EWCA Civ 1641, decided on 19-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

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