Royal Mencap Society v Tomlinson-Blake

For national minimum wage purposes, a worker contractually required to sleep at or near the workplace, with suitable sleeping facilities, is ordinarily available for work rather than actually working. Under the availability provisions in the National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015, only time when the worker is awake and required to work counts. This remains so where the worker must listen for emergencies or exercise professional judgment if roused. The classification is factual, but an arrangement positively expecting the worker to sleep falls within the sleep-in exception. The contrary approach in Burrow Down Support Services Ltd v Rossiter was wrongly decided.

Two conjoined appeals concerned overnight arrangements under the national minimum wage legislation. In Royal Mencap Society v Tomlinson-Blake, the Employment Appeal Tribunal, following Burrow Down Support Services Ltd v Rossiter, held that a care support worker was actually working throughout a nine-hour sleep-in shift. In Shannon v Rampersad, the Employment Tribunal found that the claimant, who lived in staff accommodation and was required to respond only if assistance was needed, was available for work rather than actually working. The Employment Appeal Tribunal dismissed his claim, relying on the statutory exceptions.

The appeals concerned whether the whole period spent at the workplace had to be counted, or only time spent awake and performing work.

1. Disposition. Lord Justice Underhill gave the leading judgment. Lord Justice Singh and the Senior President of Tribunals agreed. The appeal in Mencap was allowed and the claim dismissed. The appeal in Shannon was dismissed.
2. Statutory construction. The National Minimum Wage Regulations 1999 and National Minimum Wage Regulations 2015 distinguish between actual work and availability for work. The availability provisions require the worker to be available for working at or near the workplace. They are subject to the at-home exception and the sleep-in exception. A worker who sleeps by arrangement at the workplace and is provided with suitable sleeping facilities is ordinarily within the availability provisions, not the actual-work category.
3. The first report of the Low Pay Commission was admissible as an aid to construction. The statutory mechanism under the National Minimum Wage Act 1998, particularly the obligation to explain departures from the Commission’s recommendations, made this a particularly strong case for considering the report. Its recommendation that sleep-in workers should receive the minimum wage only for time awake and required to work reinforced the ordinary reading of the Regulations.
4. Authorities. British Nursing Association v Inland Revenue correctly established that the availability provisions do not apply where the worker is actually working. Its facts did not determine the position of a worker positively expected to sleep. Scottbridge Construction Ltd v Wright was distinguishable. The question whether a worker is actually working or merely available remains factual, but the distinction drawn in Burrow Down was wrong. The post-Burrow Down authorities could therefore be put aside to the extent that they followed that approach. The multifactorial analysis in Focus did not provide a satisfactory answer.
5. Application to Mencap. The claimant was expected to obtain a good night’s sleep and was permitted to sleep in a dedicated bedroom. Her obligation to keep a listening ear and exercise professional judgment if roused did not convert the whole shift into actual work. Only periods when she was awake for the purpose of working counted.
6. Application to Shannon. The claimant was only required to respond if assistance was needed and was plainly available for work rather than actually working. The at-home exception applied, and the sleep-in exception also supported the same result. A new argument that the hours were basic salaried hours was not allowed to be raised for the first time on appeal.

• Court of Appeal (Civil Division) — Conjoined appeals determined under [2018] EWCA Civ 1641 . The Mencap appeal was allowed and the claim dismissed. The Shannon appeal was dismissed.
• Employment Appeal Tribunal — The Mencap decision, reported at [2017] ICR 1186 , held that the sleep-in worker was actually working throughout. The Shannon decision, reported at [2015] IRLR 982, dismissed the claim on the statutory exceptions.