National minimum wage not payable for full sleepover shifts

The Court of Appeal in Mencap v Tomlinson-Blake, heard with Shannon v Clifton House Residential Home, addressed the situation whether employees, who are either in a client’s home or potentially providing care in their own home, are entitled to the national minimum wage (NMW) when they are on sleep-in duties. Lord Justice Underhill considered the statutory position in great detail and addressed all the relevant case authorities. He also received written submissions from the two interveners, Care England and the Local Government Association. He addressed the difference between “available for work” and “actually working” and held that the NMW is only payable when the employee is awake and providing care.

In this case Tomlinson-Blake did sleepover shifts in the home of two adults with a disability who required 24-hour care. Shannon was in a very different position, in that he was provided with accommodation in a studio at the top of a care home. This was his home. He was required to help the night care worker when required and was given a flat weekly rate for these duties.

The decision has been subject to criticism. Unison observed that it is common sense that sleepover shifts should be paid. Their argument is that it is unfair that employees are not remunerated when they are “working away from their homes, so they are necessarily away from their family and friends (and may have to sort and pay for childcare) and… would be disciplined if they left their place of work”.

This is a Court of Appeal judgment and therefore only persuasive in Scotland. HMRC are considering the judgment and will in due course provide guidance. However, Unison have reported that the Scottish Government is looking at providing additional funding to fund sleepover shifts.

Mencap v Tomlinson-Blake; Shannon v Clifton House Residential Home [2018] EWCA Civ 1641