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Mencap: the decision that could change the landscape of the care sector

Mencap: the decision that could change the landscape of the care sector

EM
BY Erin Moncur
Employment Law & HR

The Supreme Court will soon publish the judgment in one of the most significant employment law cases of the last decade. In Royal Mencap Society v Tomlinson Blake, the Court must decide whether the entirety of sleep-in-shifts should be classified as working time for National Minimum Wage (NMW) purposes or only the time that is spent awake performing work.

Background

Mrs Tomlinson-Blake was employed by Royal Mencap Society as a care support worker to provide care and support for vulnerable adults. She was required to work a sleep-in shift from 10pm to 7am. There were no specific tasks allocated to her during this shift, however she was required to remain on the premises and keep a ‘listening ear’ out during the night in case she was needed to respond to a request for support. When there were no such requests for help, she was permitted to sleep throughout the shift. She was paid a flat rate of £22.35, plus one hour’s pay of £6.70 (£29.05 in total) for the shift.

In her claim to the Employment Tribunal, she argued that all of the hours spent on sleep-in shifts should be counted as working time and thereby be subject to the NMW Regulations 2015. The key question for the tribunal was whether Mrs Tomlinson-Blake was working or merely available for work during the sleep-in shift: if the former, NMW would be due throughout; if the latter, a flat rate lower than NMW would be acceptable. The Employment Tribunal, and subsequently the Employment Appeal Tribunal, upheld her claim and ruled that she was entitled to receive NMW for the full duration of her sleep-in shifts.

Mencap appealed the decision to the Court of Appeal who held that sleep-in workers are not entitled to NMW for the full duration of their shift, but only for those hours when they are awake for the purposes of working.

Mrs Tomlinson Blake was granted permission to appeal the Court of Appeal’s decision. The Supreme Court sat for two days in February 2020 to decide this contentious point which will be hugely significant for care workers and providers.

If the decision is upheld…

If the Supreme Court decides in Mencap’s favour, employers can continue to pay workers for sleep-in shifts in the same way as they have previously on the basis that NMW is only payable for the time the worker spends awake carrying out duties and not for any time spent sleeping. This will be a huge relief to care providers who will not be faced with liability for back-pay or a need to alter their contractual terms for the payment of sleep-in shifts. Those with ongoing relevant employment cases on hold pending this judgment may also apply to have those cases struck out.

If the decision is overturned…

Should the judgment go in favour of Tomlinson-Blake, this will have a profound impact on employers in the care sector. Not only will care providers need to budget for the fact that workers must be paid the NMW for the entirety of their sleep-in shifts going forward, but they will also be liable for back-pay of their shortfall in NMW payments over the last six years. This will burden employers with seismic

financial pressures, with some care charities estimating a potential sector-wide liability of £400m. Whilst this decision would be welcomed by care workers who will receive a windfall in backdated pay, it could reportedly lead to the collapse of many care providers who simply cannot afford to foot the bill.

It is still unclear which way the Court will swing, however it is prudent for care employers to start taking pragmatic steps to ensure that they can meet their obligations should the appeal go in Tomlinson-Blake’s favour. The judgment is expected any day now so watch this space.

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