This morning (19 March 2021) The Supreme Court issued the long-awaited judgment regarding whether carers are entitled to payment of the National Minimum Wage while undertaking night shifts for time that is not spent actually performing some specific activity . 

The Supreme Court dismissed the appeal from Mrs Tomlinson-Blake.  Had the employee been successful, this could have cost the care sector millions of pounds in outstanding wages and fines.

In Royal Mencap Society –v- Tomlinson-Blake the Claimant, Mrs Tomlinson-Blake was 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. Mrs Tomlinson-Blake 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 to the Employment Appeal Tribunal.

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.  Mencap appealed the decision to the Court of Appeal.  The Court of Appeal allowed Mencap’s further appeal on 13 July 2018, deciding that Mrs Tomlinson-Blake was not entitled to national minimum wage payments for such shifts.

Mrs Tomlinson-Blake appealed the Court of Appeal’s decision to the Supreme Court but the decision announced this morning was unsuccessful.  It essentially found that a worker is only entitled to the national minimum wage for the hours they are awake and working and the time a worker is required to sleep on site does not count towards minimum wage calculations.

This represents the end of the appeal process in this case.

Chris Randall litigated the original successful Employment Tribunal claim.  He commented that this is a very sad day for many of the poorest paid carers in this industry.  While employers in the care sector are breathing a sigh of relief, they will need to think carefully about how they can motivate a workforce that were expecting an increase in pay.



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