Irwin Mitchell Lawyers Comment On Significant Ruling

Thousands of care home businesses will breathe a huge sigh of relief after the Supreme Court handed down its ruling today in relation to 'sleep in' shifts.

The long-awaited ruling in Mencap v Tomlinson-Blake relates to businesses whose workers are on call during the night.

The Court of Appeal had earlier confirmed that under the National Minimum Wage (NMW) regulations, workers are either available for work or actually working.

Those who provide sleep in cover are only available for work and, therefore, only have to be paid at appropriate NMW rates if they have to get up during the night to help a patient or do some other work. They don't have to be paid at NMW rates when they are in bed or resting.

The Supreme Court heard the case over a year ago and has today upheld the earlier ruling.

If the ruling had been overturned, workers would have been able to recover up to six years underpayments. More significantly, HMRC could have imposed huge fines on employers of up to £20,000 for each underpaid worker.

The Court made its decision on the basis of recommendations made by the Low Pay Commission over 20 years ago which the government accepted at the time the NMW came into force.

The LPC recommended that workers who perform sleep in shifts should not receive the NMW for hours spent asleep and should only be paid at NMW rates when they were awake for the purposes of working. It envisaged that workers would negotiate an allowance with their employers to compensate them for the time they were contractually required to be at work but could sleep.

The Supreme Court said that the NMW Regulations should be interpreted in that light. In doing so, it overruled previous cases, including one where nurses who manned a 24-hour telephone line at night from their homes, who were allowed to sleep between calls were found to be working throughout their shift and were therefore entitled to receive the NMW for it.

Siobhan Mulrey, an employment law specialist at law firm Irwin Mitchell said:

“Care organisations will breathe a huge sigh of relief as, had the Supreme Court ruled against them, they would have faced huge and, for many, unaffordable liabilities. On the other hand care workers will be very disappointed, particularly as they perform a vital service, yet are some of the poorest paid workers in our society.”

 “Although this decision only directly applies to workers whose main purpose is to sleep at or near their place of work, it may open wider arguments about the correct pay for other home workers. It’s possible that home workers will find it more difficult to argue they are working throughout their shifts, rather than simply being ‘available for work’.

“So, whilst this decision marks the end of the road for sleep in shift arguments, there’s likely to be further litigation around pay for home workers.”