Yesterday Unison applied to the Supreme Court asking them to consider an appeal against the recent Court of Appeal decision regarding pay for those staff who sleep in at work. If you sleep in at work, read this post to find out more…
On Friday 13th July 2018 the Court of Appeal made a landmark judgement regarding the wages of ‘sleep in’ staff in the cases of Mencap v Tomlinson–Blake and Shannon v Rampersad. Sleep in staff are professionals who agree to sleep at their place of work with the understanding that they may be woken if their assistance is needed. If no assistance is required, the staff simply sleep.
In Mencap v Tomlinson – Blake, the Claimant was a Care Support Worker who stayed at a vulnerable adults’ home between 10pm and 7am. During this period the Claimant had no specific duties and would sleep, only waking if she was needed by a resident. Throughout the sixteen months the Claimant was only disturbed on six occasions. Both the Employment Tribunal and Employment Appeal Tribunal found in favour of the Claimant that she was ‘actually working’ throughout the entire shift. Therefore, the Claimant was entitled to the National Minimum Wage for the total amount of hours spent on the premises despite mostly being asleep.
Likewise, in Shannon v Rampersad, the Claimant was an On-Call Night Care Assistant in a care home. Mr Shannon was required to sleep at the premises from 10pm to 7am and respond to requests from other care staff. Mr Shannon was rarely disturbed at night and had a day job as a driver.
Court of Appeal Decision
Despite the clear legal principles supporting the above Claimants, Lord Justice Underhill in the recent Court of Appeal hearing reversed the previous decisions and termed both workers as ‘available to work’ instead of ‘actually working.’ This now means that sleep in staff are only entitled to the National Minimum Wage when they are ‘woken for the purposes of working’ and not throughout their shift.
Yesterday, Unison on behalf of their members applied to the Supreme Court to consider an appeal against Lord Justice Underhill’s decision. The view of Unison (and perhaps others in the employment law field) is that the Court of Appeal’s decision was wrong and so they have committed to do everything they can to reverse it.
If you are a worker who “sleeps in” you need to bear in mind that the Employment Tribunal operate on very strict time limits. Our advice is to contact us for urgent advice either by phone on 01522 440512, email to ContactUs@Lincslaw.com or visit our website for further information – www.lincslaw.co.uk
Director and Specialist Employment Law Solicitor
Lincs Law Employment Solicitors, Lincoln