In the employment case of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad & Anor (T/A Clifton House Residential Home)  EWCA Civ 1641, the Court of Appeal found that an ‘on-call night care assistant’ and a ‘care support worker’, both of whom, on rare occasions, were required to respond to emergency requests for assistance, between the hours of 22:00 and 07:00 (a ‘sleep-in shift’), were wrong to argue that the totality of their shifts were salaried working hours, for minimum wage purposes.[i]
The Lord Justices of Appeal were compelled to follow the Low Pay Commission’s guidance, in 2003, which stated:
‘We noted the difference between these 'sleepovers' and on-call or standby arrangements where a worker is required to be at the workplace outside of normal working hours with the expectation that he or she will be required to work, for which the National Minimum Wage is payable’.
In respect of Shannon, the claimant was not entitled to recover back-dated wage arrears of almost £240,000. The arrangement with his defendant employer, through which he received free accommodation and £50 per week (later £90 per week), as well as being allowed to sleep during his ‘working’ hours, did not constitute a breach of obligations under the National Minimum Wage Regulations.
Likewise, the claimant in Tomlinson-Blake received a flat rate of £22.35, together with 1-hour’s pay of £6.70 and complimentary accommodation facilities. In 16 months, she was required to intervene just 6 times. As with Shannon, Lord Justice Underhill found that the carer was merely ‘available for work’ and not ‘actually working’:
‘The result is that the only time that counts for [national minimum wage] NMW purposes is time when the worker is required to be awake for the purposes of working’.
The matter has since been appealed to the Supreme Court and last week, Lord Kerr, Lord Wilson, Lord Carnwath, Lady Arden, Lord Kitchin heard submissions.
Daniel Herman, Partner at claimant personal injury specialist, Stewarts Law, told The Law Society Gazette that, should the appeal succeed, this would have ‘significant implications in the personal injury sphere’, as:
‘Claimants who require care from sleep night carers will have to pay more for each night shift and, consequently, their care claims will inevitably increase’.[ii]
Until the outcome is delivered, defendant practitioners should be prepared to view claimant pleadings presented in 2 forms; 1 that reflects a continuation of the status quo, and 1 that increases the cost of ‘sleep-in shift’ care.
[i] ‘Case details: Shannon (Appellant) v Rampersad and another (T/A Clifton House Residential Home) (Respondents)’ (The Supreme Court) <https://www.supremecourt.uk/cases/uksc-2018-0161.html> accessed 14 February 2020.
[ii] John Hyde, ‘PI lawyers alive to Supreme Court case on overnight care costs’ (12 February 2020 Law Gazette) <https://www.lawgazette.co.uk/law/pi-lawyers-alive-to-supreme-court-case-on-overnight-care-costs/5103064.article> accessed 14 February 2020.