Bad news about NMW for sleep-in care workers

Are you a sleep-in care worker?

If yes, you need to know about a recent judgment that is likely to disappoint you and many of our clients.

The Supreme Court has made a landmark ruling that care workers who sleep at the homes of their service users:

• ARE entitled to National Minimum Wage (NMW) for the hours they are awake and working
• NOT entitled to NMW for hours they are required to sleep on-site or nearby, but are not actually carrying out work activities

The judgment was based on two cases: Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad. This is the final ruling, and the claimants have no further route of appeal.

Royal Mencap Society v Tomlinson-Blake

• The lower courts found that Tomlinson-Blake should have been entitled to the NMW as she had been working throughout her sleep-in shifts
• The Court of Appeal found that she was only “available for work” when she was sleeping, and ruled that she was only entitled to NMW for the time she was actually helping the patient or doing other work
• The Supreme Court agreed with the Court of Appeal and dismissed the case

Shannon v Rampersad

John Shannon was paid a salary and received an allowance of £50 per week to live in a studio in an elderly person’s home. Occasionally, he was required to help another care worker during the night. As such, he claimed he should have been paid NMW for the time he spent working at night.

• The Supreme Court ruled there is a ‘working from home exception’ in the NMW regulations which applies in Shannon’s case, but his NMW case was dismissed

What this means to sleep-in care workers

Similar ‘copycat’ claims are now likely to fall away – disappointing news if you’re a sleep-in carer who’s been pinning your hopes on the possibility of additional pay and back pay.

When formulating the NMW regulations, the Low Pay Commission recommended to the government that sleep-in workers should not be paid for every hour they spend sleeping, but should receive an allowance for a night shift, unless they are awake for the purpose of carrying out work activities.

Your employer should ensure that their systems accurately record time spent working during sleep-in shifts, so that your pay doesn’t fall below NMW levels.

If they don’t accurately record and pay you NMW, let us know, and we’ll advise whether you could make a claim for back-pay.