When work is not “actual” work

By Pete Whitelegg

Back in February the Supreme Court made a landmark judgement concerning a case that had been wending its way through the British legal system for at least the last five years. The case, Royal Mencap Society Society vs. Tomlinson-Blake, addressed the issue as to whether sleepover shifts are subject to the National Minimum Wage. The outlines of the case are not disputed. Blake Tomlinson was employed by Mencap to provide support and care to vulnerable adults on behalf of local authorities. The claimant was employed by Mencap as a care support worker.  She was part of a team who worked a mix of day shifts and overnight ‘sleep-in’ shifts at two residential properties, providing 24-hour care to individuals with learning difficulties who lived there.

During the “sleep-ins” she was obliged to remain on the premises throughout the night and to keep a ‘listening ear’ in case she was needed. It was determined that the need was real, but infrequent, as Tomlinson-Blake had only been required to intervene 6 times during the previous 16 months. After the ‘sleep-in’ shifts staff were required to work a full day shift the following day.

According to Mencap, and the wider social care sector for that matter, the issue was much larger than under what conditions the National Minimum Wage was payable, although this would have had a significant effect on the balance sheets of many care providers.  If the case had eventually gone against Mencap the whole social care sector would have had to foot a significant bill for back pay, estimated at around £400 million.  A bill that would have seen a considerable number of companies in this sector go to the wall. 

In the case of Mencap vs Tomlinson-Blake the Supreme Court confirmed that workers on sleep-in shifts are entitled to have their hours counted for NMW (National Minimum Wage) purposes only when they are “awake for the purposes of working”.

The original Employment Tribunal in 2016 came to the opposite conclusion. According to the National Minimum Wage Act there are four types of work which are used to calculate a worker’s pay. These are not dependent on the duties carried out but only on the way the workers pay is calculated. 

Within the Act there a four types of work used to determine whether the national minimum wage is payable.  They are salaried hours, time work, output work and unmeasured work.  In this case it was determined by the tribunal that the applicable type of work in this case was time work.

Regulation 32 of the 2015 Regulations states:

2.  “Time work includes hours when a worker is available, and required to be available, at or near a   place of work for the purposes of working unless the worker is at home.

3. In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”

The effect of regulation 32 is that if a worker has to be available at a place of work where suitable sleep facilities are provided, the worker is only paid the NMW for the time when they are “awake for the purposes of working”.

However, in several previous Employment Tribunal judgments care workers had been found to be actually working throughout  ‘sleep-ins’  for example because they could not leave site or were present due to a statutory obligation on the employer – and therefore the question of whether they were deemed to be working under regulation 32 simply did not arise.

 In previous Employment Tribunal cases it was deemed correct that workers should receive the National Minimum Wage for the whole of their shift, not just the proportion of the shift they were awake, because they were at their place of work and were unable to leave. In essence then the Tribunals determined that this would constitute “actual” work.

The judgement by the Supreme Court overturned this ruling and confirmed that workers on “sleep-in” shifts can only count the hours for which they are actually awake as counting towards the calculation for pay under the National Minimum Wage.

The Court emphasised the distinction in the Regulations between carrying out ‘actual work’ on the one hand and being ‘available for work’ on the other: if the worker was (merely) available for work, regulation 32 applied and they could not be said to be carrying out actual work under regulation 3(above).

The scope of this judgement is much wider than just the care sector as it overrules judgements that apply to other employment sectors. In a landmark case from 2002 workers who operated a telephone booking service for a nurse agency were deemed by the employer not to be working between calls. During the day the service was conducted from the employer’s premises, but the night shift worked from their homes. 

The calls were diverted to the night “duty nurse” who would take the call and book the nurse. The workers were paid an amount per shift. The employers considered that the staff were not working when they were not actually answering the phone and therefore not entitled to the minimum wage during these periods. The employment Tribunal determined that an employee who operated a night-time telephone service from home is doing “time work” when waiting to answer a phone at their own home. They were therefore entitled to the National Minimum Wage for the duration of their shift. 

The importance of this judgement is the distinction it draws between “available for work” and “actual” work.  According to this judgement your employer can mandate that you be at your place of work for a set number of hours and providing no specific tasks or work is specified the worker will not be entitled to the National Minimum Wage. 

Under these conditions the worker will only be entitled to the National Minimum Wage when they perform  ”actual” work. Strangely, the National Minimum Wage Act provides no definition of what is to be considered work.  In the digital age where work is handed out to employees via an app, I wonder how long it will be before this distinction between “available for work” and “actual” work becomes a real problem for an increasing number of workers

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