Royal Mencap Society v Tomlinson-Blake

For national minimum wage purposes, a sleep-in worker who is permitted to sleep is treated as available for work rather than actually working. Hours allocated for sleep count only when the worker is awake for the purpose of working.

The sleep-in rule applies where the arrangement’s principal purpose is sleep and responding to disturbances is subsidiary. It cannot be avoided by first characterising mere presence, a listening responsibility or compliance with the employer’s regulatory obligations as work. Intermittent work remains possible outside this category, including where a worker may nap between substantive tasks.

These conjoined appeals concerned workers required to remain overnight at or near care premises but permitted to sleep. Mrs Tomlinson-Blake sought arrears on the basis that every hour of her sleep-in shifts counted as time work. Mr Shannon, a salaried-hours worker living at a residential care home, similarly claimed for overnight on-call hours.

The employment tribunal and Employment Appeal Tribunal upheld Mrs Tomlinson-Blake’s case but rejected Mr Shannon’s. The Court of Appeal allowed Mencap’s appeal and dismissed Mr Shannon’s appeal: [2018] EWCA Civ 1641; [2019] ICR 241.

The central issue was how hours permitted for sleep should be calculated under the National Minimum Wage Regulations 1999 and the National Minimum Wage Regulations 2015.

1. The appeals were dismissed unanimously by the four-member court. Lady Arden gave the leading judgment. Lord Carnwath, with whom Lord Wilson agreed, and Lord Kitchin agreed with the disposition and the essential interpretation of the regulations.

2. The statutory question was how hours are determined for national minimum wage purposes, rather than whether an activity might ordinarily be described as work. Regulation 17 of the National Minimum Wage Regulations 2015 expressly contemplates hours being treated as worked. The statutory rules may therefore produce a result different from an assessment based simply on the restrictions imposed upon the worker.

3. The sleep-in provisions must be read with the definitions of time work and salaried-hours work as a harmonious scheme. The Low Pay Commission reports were relevant interpretative context because the government had accepted the underlying recommendation. That recommendation contemplated an agreed allowance for time allocated to sleep, with national minimum wage entitlement arising when the worker was awake and required to be available for work.

4. Under regulation 32(2) of the National Minimum Wage Regulations 2015, and the corresponding provisions of the National Minimum Wage Regulations 1999, a sleep-in worker is not performing work for minimum-wage purposes while permitted to sleep. If the arrangement allocates the period for sleep and requires only a response to emergencies, only time actually spent awake for the purpose of working counts. Repeated disturbance does not cause the whole shift retrospectively to count.

5. The category is confined to arrangements whose principal purpose and objective is that the worker will sleep at or near the workplace, with responses to disturbances subsidiary to that purpose. A worker may still be working where substantive tasks arise intermittently, and a nap between tasks does not necessarily alter that conclusion.

6. The fact that the worker’s presence enables an employer or public authority to satisfy contractual, regulatory or statutory obligations does not determine the hours counted. Nor does maintaining a listening responsibility while asleep. The multifactorial test adopted by the Employment Appeal Tribunal was inconsistent with the statutory scheme and would introduce unwarranted uncertainty.

7. British Nursing Association v Inland Revenue [2002] EWCA Civ 494, Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172 and Scottbridge Construction Ltd v Wright [2003] IRLR 21 should no longer be regarded as authority for treating workers expected to sleep as working throughout the shift. Walton v Independent Living Organisation Ltd [2003] EWCA Civ 199 was reinforced.

1. United Kingdom Supreme Court: Both workers’ appeals were dismissed unanimously. The decision below was affirmed.
2. Court of Appeal: Mencap’s appeal concerning Mrs Tomlinson-Blake was allowed and Mr Shannon’s appeal was dismissed: [2018] EWCA Civ 1641; [2019] ICR 241.
3. Employment Appeal Tribunal: Simler P upheld the determination that Mrs Tomlinson-Blake worked throughout her sleep-in shift. Judge Peter Clark dismissed Mr Shannon’s appeal.
4. Employment tribunals: Mrs Tomlinson-Blake succeeded on the preliminary minimum-wage issue. Mr Shannon’s claim failed because he was not working throughout the shift and the home and sleep-in provisions applied.