In July 2018, the Court of Appeal reached a decision in the case of Royal Mencap Society v Tomlinson-Blake. The case concerned the National Minimum Wage (“NMW”) and sleep-ins and finally clarified an area of law causing much difficulty for the care sector, ruling that, although technically on call, carers who sleep at a client’s house are not entitled to NMW when they are asleep.
By way of background, under Regulation 32 National Minimum Wage Regulations 2015 (“NMWR”), a worker who is not actually working may be treated as working (and therefore entitled to be paid NMW) if they are available (and are required to be available) at or near a place or work for the purpose of doing such work, unless; –
- the worker is at home, or
- the worker is asleep at or near the place of work at facilities provided by the employer.
However, in the case of British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) , the Court of Appeal noted that the above two exceptions only apply where the worker is “available for work” rather than actually working. In this case, nurses were providing a night service by telephone from home and it was held that they were doing actual work throughout the whole shift (even when sleeping) and were not merely available for work between calls. The work done was identical to work done during the day from the employer’s premises.
In the most recent case of Royal Mencap Society v Tomlinson-Blake, Mrs Tomlinson-Blake was a care worker and was contractually obliged to spend the night at or near her workplace. It was expected that she would sleep for most of the period but could be woken if her assistance was required. On this basis it was held that Mrs Tomlinson-Blake was to be treated as “available for work” during her sleeping shift rather than actually working and she was only entitled to the National Minimum Wage for the hours during which she was required to be awake for the purpose of working.
The main point to note in the Royal Mencap Society case was that the “essence of the arrangement is that the worker is expected to sleep”. If the arrangement is that the worker is not expected to sleep then their whole shift would be treated as them working and therefore the NMW would apply.
The practical effect of this judgment is that workers who sleep at a residential care home or similar place of work while on call for emergencies are merely available for work and therefore not entitled to the NMW until actually called upon. Care workers can therefore be distinguished from other jobs such as with night watchman who may have significant duties at the beginning and end of their shifts and only a mattress in an office rather than a proper bed in an area set aside for sleeping.
Therefore, and as the case of British Nursing Association still applies, employers will still need to consider whether their care workers expected to sleep and whether proper beds are provided for this sleep before ceasing payment of NMW in such cases.
To this end, in late 2017, HMRC introduced the Social Care Compliance Scheme (“the Scheme”), which related to underpayment for working time while carrying out overnight sleep-in shifts in the social care sector.
The Scheme is for employers who employ workers classed as “working” during sleep-in shifts and who have not paid the NMW to workers for any time spent “working”. Once an employer joined the Scheme it has to; –
- Review the amount paid to its workers for sleep-in shifts with the help of HMRC
- Return a declaration to this effect within 12 months of receiving it or by 31 December 2018, whichever is sooner
- Pay the workers any underpayment for sleep-in shifts within 3 months of returning the declaration or by 31 March 2019, whichever is sooner
- Pay the workers any other National Minimum Wage underpayments discovered before the declaration is returned
- Pay any additional tax or NI contributions that result from this underpayment
Ensure that workers are paid at least the NMW for sleep-in shifts from the date the underpayment is discovered
- Keep records of how underpayments were decided and calculated.
HMRC issued some guidance on whether sleep-in shifts should be considered working time, for which workers are entitled to be paid NMW. The guidance stated that the worker is likely to be classed as working throughout a sleep-in shift if any of the following applies; –
- An employer is required by law to have the workers on the premises overnight
- An employer requires them to be present on the premises overnight
- The workers’ contract does not specify the time they have to work and any period that they are allowed to sleep during a night shift – regardless of whether the employer provides sleeping facilities or not
- The workers’ contract specifies the time they have to work and any period that they are allowed to sleep during a night shift but the employer doesn’t provide sleeping facilities
It remains to be seen whether HMRC will now review the Scheme and the guidance provided to employers in light of the Royal Mencap Society case.