On Friday 13th July 2018, The Court of Appeal handed down its much anticipated reserved judgement, following the hearing on 20 and 21 March 2018, in the joint case of Royal Mencap Society and Claire Tomlinson-Blake and John Shannon and Mr and Mrs Rampersad t/a Clifton House Residential Home.
Ashfords LLP, acting for the Rampersads (owners of Clifton House Residential Home) successfully defended Mr Shannon's claim that he was entitled to have the entirety of the hours between 10pm and 7am counted as salaried hours work for National Minimum Wage purposes for 365 days a year. The arrears that he claimed on that basis were calculated to amount to almost £240,000. In a unanimous decision the Court of Appeal dismissed Mr Shannon's appeal and upheld Mencap's appeal thus finding that in both of these cases, the time that counts for National Minimum Wage purposes is limited to the time when the worker is required to be awake for the purposes of working. In the case of Mr Shannon, Lord Justice Underhill further commented that "… it is impossible on any common-sense approach to describe the Claimant as actually working except when he was called on to assist the night care worker".
In the case of both Mr Shannon and Ms Tomlinson-Blake the court found that they were to be characterised for the purpose of the National Minimum Wage Regulations 1999 (the Regulations") as "available for work" within the meaning of regulation 15 (1)/32, rather than actually working, within the meaning of regulation 3/30 during the "sleep-in" period, and as such fell within the terms of the sleep-in exception in regulation 15 (1A)/32 (2). The Court of Appeal found that it was not bound by authority to come to any different conclusion.
Lord Justice Underhill in his judgement specifically dealt with the case of Burrow Down Support Services Ltd v Rossiter. The facts of this case, as summarised in the judgement, concerned a "night sleeper" who "…had to attend work between 10pm to 8am two nights a week. His job was to ensure the security of the work premises, a care home for people with learning difficulties. He had to monitor health and safety and to be accessible should any emergencies occur. He was required to be awake for a quarter of an hour to effect a handover of duties, and to assist with the breakfasts of the residents between 7am and 8am. Otherwise he could be asleep, save when his duties required him to be awake, such as if he heard noises requiring investigation or if anything else untoward occurred". The Employment Appeal Tribunal found that Mr Rossiter was working throughout his shift within the meaning of regulation 3, so that regulation 15 (the "sleep-in exception") was not applicable. Lord Justice Underhill confirmed that, in his opinion, this case had been wrongly decided and as such the "post Burrow Down authorities" seeking to either follow this decision or distinguish themselves from it, could be disregarded.
This outcome has provided some much needed clarity in the care home sector in respect of workers and employees who truly perform "sleep-ins" where they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity.
This is very good news for the care home sector whom it has been estimated have been facing claims of several hundreds of millions of pounds in back pay and penalties from staff resulting in some organisations inevitably facing bankruptcy.
At the same time, the judgement does not rule out the possibility of there being cases where, just because a worker is entitled to go to sleep in the intervals between particular tasks, this would necessarily prevent the whole of this time being considered as "actually working". This provides some protection for workers who are, for instance, required to answer calls from home and these calls are frequent with lull periods in between. In these types of cases a dividing line will still need to be made between being "available for work" and "actually working". That is however separate to the facts dealt with in this case and which is common within the care sector.
It remains to be seen whether either Mrs Tomlinson-Blake or/and Mr Shannon will apply for permission to appeal this decision.
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