The case of Royal Mencap Society -v- Tomlinson-Blake was heard in the Supreme Court in February 2020. Mrs Tomlinson Blake is a care support worker for two men with autism and substantial learning difficulties. As part of her role, she is expected to “sleep-in” and effectively be on call, in case either resident requires support through the night. She was paid a flat rate of £22.35 plus one hour’s pay of £6.70 (a total of £29.05) for a sleep-in.
If she was woken in the night, she would not be paid for the first hour, but would be paid her hourly rate for any additional hours she was awake and required to work. It was accepted she was not given any specific tasks in the night, but she was expected to keep a “listening ear”, in case either resident required support. It was accepted that she was only called to assist 6 times in 16 months.
Mrs Tomlinson Blake argued she should be entitled to be paid national minimum wage (‘NMW’) during the hours she was required to sleep-in and be on call. The Employment Tribunal and Employment Appeal Tribunal decided in favour of Mrs Tomlinson Blake.
The Court of Appeal overturned the Employment Tribunals’ decisions, ruling that national minimum wage does not apply to sleep-in shifts unless the worker is required to work. If the worker is woken up, national minimum wage is payable while carrying out duties – not for the full duration of their sleep-in shift.
The UK minimum wage legislation covers a worker who is available to work at the workplace. The Court of Appeal have ruled that the worker is not considered as available to work when permitted to sleep at the workplace, unless the worker is woken for the purposes of working and is required to actively assist residents.
If the Supreme Court overturns the Court of Appeal and rules in favour of Ms Tomlinson-Blake, the care sector is estimated to face crippling claims for back pay of up to £400 million. This could result in the majority of care providers being put at risk of insolvency and many essential care homes closing.
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This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.
