Royal Mencap Society v Tomlinson-Blake (and conjoined appeals)

For national minimum wage purposes, a worker permitted to sleep at the workplace may nevertheless be doing time work throughout the shift. The question is whether the worker is actually working by being present under Regulation 30 of the National Minimum Wage Regulations 2015. Regulation 32 applies only if that question is answered negatively.

The inquiry is fact-sensitive and multifactorial. Relevant considerations include the employer’s purpose in requiring presence, restrictions on the worker, responsibility during the shift, and the immediacy of any required intervention. No factor, including a requirement to remain on pain of discipline, is determinative. Tribunals must apply that approach to the contractual and factual context, rather than decide by analogy or contractual labels such as “on call”.

Three conjoined appeals concerned overnight sleep-in arrangements and entitlement to the national minimum wage under the National Minimum Wage Regulations 2015.

• Royal Mencap Society v Tomlinson-Blake: the Employment Tribunal held that a care worker was doing time work for her full sleep-in shifts while required to remain in service users’ home and exercise professional judgment if intervention was needed.
• Frudd v Partington Group Ltd: the Employment Tribunal dismissed wardens’ claims, treating their overnight rota as falling on the available-for-work side of the distinction.
• Focus Care Agency Ltd v Roberts: the Employment Tribunal upheld claims for contractual underpayment and national minimum wage in respect of sleep-in shifts.

The common issue was whether workers who sleep in to perform duties if required are doing time work for the whole shift, or only when awake for work.

1. The appeals of Royal Mencap Society and Focus Care Agency Ltd were dismissed. The Frudds’ appeal was allowed and their claims were remitted to a fresh tribunal.

2. The tribunal must first decide under Regulation 30 whether the worker is actually working during the claimed period. A worker may be working merely by being present, despite sleeping or having little to do. Regulation 32 is a deeming provision for a worker who is available but is not actually working; it does not qualify periods found to be actual work.

3. The distinction cannot be resolved by a bright-line rule, by whether duties are described as core duties, or by the contractual label “on call”. It requires a realistic appraisal of the contract, the nature of the engagement, and the factual matrix.

4. Potentially relevant factors are the employer’s purpose in engaging the worker, restrictions on the worker’s activities, the degree of responsibility undertaken, and the immediacy with which services must be provided. A regulatory requirement for somebody to be present may be relevant, but cannot determine the result. The weight of every factor depends on the circumstances.

5. The Mencap tribunal permissibly applied that approach. The worker had to remain throughout the shift, keep a listening ear, exercise professional judgment about intervention, and intervene immediately when necessary. She was therefore working throughout the sleep-in shift.

6. The Frudds’ tribunal had decided by analogy with earlier cases and had not explained its treatment of the contract, the employer’s purpose, the restrictions imposed, or the workers’ responsibilities. Its decision could not stand. A fresh hearing was required because further evidence might be needed.

7. Focus’s contractual appeal failed independently. Its written contract superseded earlier oral arrangements and did not provide for a sleep-in allowance. The tribunal was entitled to find no agreed variation or waiver; silence alone does not amount to consent to a disadvantageous variation.

• Employment Appeal Tribunal: Mencap’s and Focus’s appeals were dismissed. The Frudds’ appeal was allowed and remitted for rehearing before a fresh tribunal.
• Employment Tribunal — Royal Mencap Society v Tomlinson-Blake: held that the whole sleep-in shift was time work under Regulation 30 of the National Minimum Wage Regulations 2015.
• Employment Tribunal — Frudd v Partington Group Ltd: dismissed the claims, treating the claimants as at home and entitled to the minimum wage only when actually working.
• Employment Tribunal — Focus Care Agency Ltd v Roberts: upheld claims for contractual underpayment and national minimum wage in respect of sleep-in duties.