News - Mark Sutton QC successful in important case on overnight shift workers and minimum wage

Employment & Discrimination - Mark Sutton QC

Mark Sutton QC was successful in this important case on whether workers on overnight shifts are entitled to national minimum wage even if sleeping.

Royal Mencap Society v Tomlinson-Blake ; Shannon v Rampersad t/a Clifton House Residential Care Home (Care England and The Local Government Association intervening) – Case No. A2/2015/3619 and A2/2017/1469) – on appeal from the EAT (Simler J and HHJ Peter Clark)

Court of Appeal - judgment handed down 13 July 2018

In a case which has far reaching implications for the care sector in particular, the Court of Appeal has provided important guidance on the entitlement of ‘sleep-in’ workers to be paid the National Minimum Wage

 

It is common in the care sector for workers to be engaged in “sleep-in” arrangements at the care home so as to be “on-call” if their assistance is required - but save for those occasions, no duties are required of them. The issue at the core of the appeal was whether or not a worker is entitled to be paid in accordance with the National Minimum Wage Regulations (“NMW”) for the entirety of the period spent “on-call” (even when asleep) or only the time spent actually performing some specific task or activity. The Court of Appeal considered the position under both the 1999 and the 2015 NMW Regulations.

Under the Regulations, the hours of work for which a worker is entitled to be paid are calculated by reference to the applicable ‘pay reference period’. The hours worked or treated as worked in the pay reference period are categorised. In Mencap, the worker was performing ‘time work’; in Shannon ‘salaried hours work’. Both the 1999 and the 2015 Regulations contain similarly worded “availability” provisions for both “time work” and “salaried hours work”. The 2015 Regulations includes the wording:

 

“……hours a worker is available at or near a place of work for the purpose of working, unless the worker is at home;

“……hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if the worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”

 

Identifying the dividing-line between ‘actual work’ and ‘availability for work’ in “sleep-in” cases was the essential question in these appeals.

The EAT had previously held that the ‘on-call night care assistant’ in Shannon (in a residential care home for the elderly, who was required to be in his accommodation on the premises between 10pm and 7am and to respond to call requests by the night care worker), was not entitled to the NMW for those hours. In the later appeal of Focus Care Agency v Roberts (with which Royal Mencap v Tomlinson-Blake was heard) the EAT held that there was no yes or no answer as to whether “sleep-in” workers were entitled to the NMW. Simler P. concluded that there was “no bright defining line” and that a ‘multi-factorial’ assessment was called for.

The Court of Appeal heard an appeal by the employer in Mencap, and the employee in Shannon. As this is an important matter for employers within the care sector generally, the Court permitted Care England and the Local Government Association to intervene.

The Court acknowledged that both of these cases differed considerably in their facts, but the common theme was that the worker was contractually obliged to spend the night at or near their workplace pursuant to an arrangement whereby they were permitted (and indeed expected) to sleep during the relevant period but could be woken if called upon to undertake some specific activity.

The Court initially approached the issue by examining the NMW Regulations free from prior authority, taking into account, as an aid to construction, the reports of the Low Pay Commission. Underhill LJ then examined each of the key authorities in some detail [§§ 48-85]. In so doing, the Court identified an clear divergence in the approach since the case of Burrow Down Support Services Ltd v Rossiter [2008], in which it had been held that a night sleeper’s entire shift counted as “time work” for the purpose of NMW Regulation. In the Court of Appeal’s view, this case had been wrongly decided.

Addressing the decision in Scottbridge Construction v Wright, Underhill LJ observed:

 

“Even if it were always practicable to find worthwhile tasks to occupy a sleeper-in for eight hours (which I doubt), that does not address the basic artificiality of describing someone as “working” – still more, as actually working – during a shift when it is positively expected that they will spend substantially the whole time asleep”.

 

Following what was described as Simler J’s “valiant attempt” in Focus to reconcile the previous authorities, Underhill LJ stated [§84]:

 

 “…..that the one advantage of a conclusion that Burrow Down was wrongly decided is that this difficult and intractable case-law can be simply put to one side”

 

Underhill LJ concluded, on the general issue, that sleepers-in are to be characterised for the purposes of the NMW Regulations as ‘available for work’ rather than actually working (falling within one of the exceptions of Reg. 32(2) [2015]). The result is that the only time that counts for NMW purposes is the time when the worker is required to be awake for the purposes of working. However, he went on to hold:

 

“As I hope is clear, my reasoning does not undermine the point of principle first established in British Nursing Association, namely that the “at home” and “sleep in” exceptions only apply in cases where the case falls in to the “available to work” rather than “actual work” category”

 

In the Shannon, the Claimant asserted that he was entitled to have the entirely of the hours between 10pm and 7am counted as salaried hours for NMW purposes for 365 days a year. He claimed £240,000 in arrears of pay. Before the ET and EAT, the central argument was whether during those hours the Claimant was actually working or available for work. The ET found that he was only ‘available to work’ and dismissed his claim. The EAT relied upon the ‘sleep-in’ exception and dismissed the Claimant’s appeal. The Court of Appeal upheld the ET’s conclusion

In Mencap, the ET and EAT had followed Burrow Down and upheld the claim on the basis that the claimant was actually working for the whole period so that the ‘sleep-in’ exception did not apply. By arrangement, the Claimant slept at her place of work and was provided with facilities for doing so.  The Court of Appeal found the earlier decisions to be wrong and that the Claimant was to be treated as available to work, not actually working, and the sleep-in exception applied.

The result of both appeals is that only the hours the Claimants were actually required to be awake (called upon) for the purposes of working counted for NMW purposes.

 

Mark Sutton QC of Old Square Chambers appeared for the successful Respondent in Shannon v Rampersad (t/a Clifton House Residential Care Home).

Case summary written by Anna Roffey of Old Square Chambers.

To read the judgment, please click here.

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