Last Friday, the Court of Appeal handed down their much-anticipated judgments on two cases: Royal Mencap Society v Claire Tomlinson Blake and John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home). The cases dealt with whether employees who are in the workplace, but are sleeping, should be entitled to be paid in accordance with the National Minimum Wage (NMW).
This method of working is most commonly seen in care homes, where an employee is paid a set fee for sleeping in the premises overnight and paid per hour if any interruption should occur requiring them to work. Usually, the set fee for “sleeping-in” is less than the amount an employee would earn should they be paid per the hourly rate set by the NMW.
Advice to Care Homes
We have advised many care home clients over the years regarding the developing case law in this area of law, with most case law turning on the specific facts at hand. The issue has become increasingly scrutinised in the media, with many businesses protesting that they would be out of business if employees were to be entitled to hourly pay whilst asleep, along with back pay for their previous sleep-in shifts worked. The HMRC have also taken action in recent months, enforcing businesses to pay employees back pay, hourly pay rates going forward and some businesses have also been issued penalties for NMW breaches.
The outcomes of the cases last week were that the Court of Appeal held that employees present at work, although asleep, were clearly not working, and therefore not entitled to be paid per hour in accordance with the NMW.
Sleeping issue not over
This has obviously made the care sector breathe a sigh of relief, however we at HCHR believe that the issue is far from over. Unions have been up in arms claiming that regardless of whether employees are asleep or not, are still undertaking a duty to their employer and should be entitled to the requisite hourly rate of pay.
Indeed, the trade union UNISON, still riding high on last year’s Supreme Court finding of Tribunal fees being unlawful and subsequently abolished, have issued a stark warning that they fully intend to appeal the Court of Appeal’s decision.
Watch this space…