July 13, 2018

Court of Appeal Reverses Pay Decision in Sleep-In Workers Saga

The Court of Appeal has today reversed a minimum wage decision relating to “sleep-in” sessions by care workers. The case in question, Royal Mencap Society and Claire Tomlinson-Blake, has ramifications for care providers throughout the UK.

In a series of Judgements, the Employment Appeal Tribunal (and subsequently HMRC) previously ruled that “sleep-in” sessions amounted to work, and therefore all hours undertaken qualified for pay of at least National Minimum Wage (NMW).

Today’s Judgement reinstates the previous position that someone would have to be “required to be awake for the purposes of working” to qualify for NMW.

It once again asserts that such staff are “available for work” when asleep but not actually “working” – they would have to be woken to perform some relevant task before being considered as working.

The Judgement also contends that an exemption in the National Minimum Wage Regulations for such activity still applies.

HMRC had introduced provisions requiring employers to fund approximately £400 million in back pay (of up to six years) to “sleep-in” carers. That requirement is now set aside.

However, the union backing Ms Tomlinson-Blake’s case (UNISON) has already indicated its intention to appeal to the Supreme Court. Of course, every court case tends to be driven by its individual circumstances but, unfortunately for employers, many such fact-driven cases considered by higher courts adopt “precedent” status.

However, as today’s Judgement shows, even “binding” precedents can be overturned.

Consequently, our advice today is necessarily different than the advice we would have provided yesterday!

Many of us who have followed the various twists and turns of the “sleep-in” saga have watched in despair. Both the UK Government and the European Union have studiously ignored the obvious need for reconsideration of the definition of “working time”.

The National Minimum Wage Regulations in the UK and the Working Time Directive in Europe are woefully overdue for major overhaul.

Moorepay customers who believe their business may be affected

If you believe your business may be affected by this Judgement please call the Advice Line on 0845 073 0240 to speak to our advisors before dealing with the ramifications, as the circumstances are far from straightforward.

If you’ve already started to pay NMW to your staff it would be unwise to discontinue doing so before discussing the matter with us. Likewise, if you have not yet paid back pay to staff who are claiming it, don’t make any payment without first taking account of the effect of this Judgement.

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About the author

Mike Fitzsimmons

Mike is a Senior HR Consultant within the Moorepay Policy Team. He is responsible for the developing of employment documentation and is an Employment law advisor. With over 30 years of senior management and HR experience, Mike has managed teams of between 30 and 100 employees and is familiar with all the issues that employing people brings. He has also served as a non-executive director on the Boards of several social enterprises and undertook a five year tour of duty as Executive Chair of a £30+ million annual turnover Government agency.