FEATURE
Lucy Gordon
The Care Sector Can Sleep Easier
Andrew Rayment and Lucy Gordon, Partner and Director in the Employment Team at law firm Walker Morris, discuss how, while there has been a significant sigh of relief from those in the care sector following the Mencap litigation judgement, there are some unwelcome points to note.
On 19th March 2021, the Supreme Court handed down the
judgement in the long-running Mencap litigation, which concerned the calculation of the time spent by sleep-in workers for the purposes of the National Minimum Wage (NMW). The case concerned two appeals.
The first claimant was a care support worker who cared for two vulnerable adults in their own home. At night, she was permitted to sleep but had to remain at the place of work and “listen out” for any emergencies, which were infrequent. She was paid an allowance plus one hour’s pay at the NMW rate.
If her sleep was disturbed by an emergency, she received no further pay for the first hour and the NMW rate for any subsequent hours. She claimed that she should be paid the NMW on average for each hour of her sleep-in shiſt. The second claimant was an on-call night care assistant at a residential care home. He was provided with free accommodation at the care home and paid a fixed amount each week. He was required to be present between 10pm and 7am and permitted to sleep but should assist the night care worker on duty as needed in case of emergencies.
The relevant provisions of the National Minimum Wage - 32 -
Regulations can be complex. In brief, the way in which hours are calculated depend on whether the tasks performed are salaried work (the worker receives a salary calculated on an annual basis for a set number of hours); time work (the worker is paid by reference to a set number of hours but is not salaried); unmeasured work (the worker is paid by reference to unspecified hours) or output work (the worker is paid by reference to piecework).
These cases concerned time work for the first claimant and salaried work for the second claimant.
The relevant sections of the Regulations say that, in summary, time when a worker is required to be available, at or near the employer’s place of business, for the purposes of doing time work, is time to be included in the calculation of time work and salaried work, except:
1. Where the worker is permitted to sleep during the shiſt; or 2. Where the worker is at home.
The Supreme Court confirmed that only the time when the claimants were awake for the purposes of working should be considered in the calculations for NMW purposes. Time spent
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