Court of Appeal rules that NMW does not apply to sleep-in care

July 13th, 2018

The Court of Appeal has today ruled that the national minimum wage (“NMW”) does not apply to the time sleep-in carers spend asleep. This means that care workers who had to stay overnight as part of their job will not be entitled to back pay at the minimum wage.

The practice of paying night-carers had been to pay them a flat rate such as £30 or £40 for their time spent asleep. In April 2017 the Employment Appeal Tribunal handed down judgment in Royal Mencap Society v Tomlinson-Blake. The EAT held the minimum wage did apply for all the time sleep-in carers were required to be on the premises. HM Revenue and Customs issued guidance and commenced a scheme, the Social Care Compliance Scheme, to ensure the payment of back pay.

There was widespread concern in the care sector that the ruling would give rise to large claims for six years of back pay. It was thought that this would leads to claims amounting to £400 million, would be unaffordable, and lead to some providers going out of business.

The Court of Appeal ruling in Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641 – assuming it survives any future appeal – now means that care providers have no liability for back pay.

Lord Justice Underhill held that “… sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception. The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.”

Unison, the union behind the litigation on behalf of care workers, is considering an appeal to the Supreme Court.

Jonathan Auburn
ja@11kbw.com

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