Next week the Supreme Court will hear argument in two cases involving care workers. At issue is whether a care worker who ‘sleeps over’ in the care home should be regarded as working for that whole shift so that each hour counts towards their entitlement to the National Minimum Wage or whether they should only be regarded as working when they are woken during the night to perform an actual task. In this post I want to explain what the issues are, and how the law developed to this point.

The two cases

At the time of writing there are two cases scheduled to be argued over the course of a two-day hearing. It is not certain that both will make it that far. In Royal Mencap Society v Tomlinson Blake the employee provided care for vulnerable adults in their home. This involved working in the afternoon and evening and then the following morning. Between these two regular shifts she was also required to work a ‘sleep-in shift’ between 10pm and 7 am.  She had no specific duties during that shift but she was required to remain in the house, be alert to any requests from help from the service users and to respond to any incident that might arise. In the course of 16 months, the Tribunal found, she was required to intervene on six occasions. She was provided with her own bedroom with a shared bathroom and was generally expected to get a good night’s sleep on the occasions when she wasn’t needed to respond to an incident.

She was paid just £29 per nine-hour sleep-in shift. The question is whether each hour in that shift should count towards her minimum wage entitlement.

The other case due to be argued is Shannon v Rampersad. As I write the claimant in this case is seeking to crowdfund his appeal and is some way short of his target, so it is not entirely clear that he will be able to take part. In any event, the facts of his case are somewhat more unusual than the normal ‘sleeping in’ case.

According to the facts found by the Tribunal, Mr Shannon was a family friend of the owner of a care home called Clifton House. At the top of the care home there was a staff flat known as ‘the Studio’ and from 1993 Mr Shannon employed as an ‘on-call night care assistant’ and given the flat to live in. He was required to be in the flat from 10pm until 7 am every night and to respond to any request for assistance from the night care worker on duty in the home.  In practice this rarely happened and he so he would normally sleep through the night undisturbed. He worked elsewhere as a driver during the day.

His wages were nominal. He was given £50 per week at first, eventually rising to £90 per week. The main benefit of the job was that he was provided with free accomodation – including all utilities. In 2013 the care home was sold and in anticipation of that sale the owner asked him to sign a contract of employment setting out a wider range of duties than he had actually carried out. He also signed a tenancy agreement under which he agreed to pay rent of £120 per week. His pay was then increased to £210 per week to cover this.

When Mr Shannon was dismissed by the new owners he brought a claim alleging that he was entitled to be paid at the rate of the minimum wage between 10pm and 7am every night. He claimed backpay going back to the introduction of the minimum wage in 1998. Although his arrangement had been nothing to do with the new owners, they would certainly be liable for any backpay due as a result of the Transfer of Undertakings Regulations 2006 (TUPE). Since the claim in total amounts to some £239,000 they can perhaps be forgiven for feeling hard done by if the claim succeeds.

To understand the issues raised by these cases we have to go all the way back to the creation of the National Minimum Wage more than 20 years ago.

The First Low Pay Commission Report

The minimum wage was introduced by the new Labour Government in the National Minimum Wage Act 1998. Now that the Conservatives are so much in favour of the minimum wage that they have effectively renamed it the National Living Wage in an attempt to share in some of the credit, it is easy to forget how controversial it was at the time. But I remember very well the suspicion if not outright hostility there was to the idea – particularly from the business  community. The Government was keen to implement the law in such a way as to build consensus around the idea of a minimum wage and to make sure it was set at a level that business could live with. It set up an independent body called the Low Pay Commission to advise on the introduction of the minimum wage and the level at which it should be set – a function that it still fulfils today. The Commission was (and still is) made up of experts from both sides of industry and academia and the National Minimum Wage Act 1998 required the Government to consult it before introducing the Regulations that would contain the detailed provisions about how the minimum wage would operate (see S.5 of the Act). Specifically the Government had to consult them about what method should be used in calculating the hourly rate at which a worker was actually being paid in order to determine whether or not they were receiving the minimum wage.

Still with me? Stick with it, this will be important later.

The first report of the Low Pay Commission was published in June 1998 and the Government confirmed that it proposed to follow its recommendations. Had they decided to depart from them they would have had to make a specific report to Parliament to that effect.

This is what the Report said about sleep-over shifts:

‘4.34 Certain workers, such as those who are required to be on-call and sleep on their employer’s premises (eg in residential homes or youth hostels), need special treatment. For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work’

In the two cases that we are now concerned with the Court of Appeal placed some importance on this recommendation when interpreting the legislation. It strikes me, however, that this passage bears the hallmarks of a compromise within the Commission itself. The reference to the need for employers and employees to ‘agree their allowance’ suggests a process of negotiation. This was written at a time when the Government was also introducing a statutory right to union recognition and ‘social partnership’ was very much in vogue. The Commissioners might have thought that unions would be in a position to fill in gaps in protection left by the Minimum Wage Regulations and ensure that workers were treated fairly. The full report is almost 300 pages long. This one paragraph is the most detailed reference to sleepover shifts that it makes. I think the Court has placed more weight on this recommendation than it can reasonably be expected to bear – but we will come back to this point later.

The Minimum Wage Regulations

The Commission’s recommendation certainly seems at first to have made its way into the Regulations. It is a complicated story because the details of the Regulations have changed over the years. I don’t think there is much to be gained from comparing the various different forms of wording we have had since 1999 when the first Regulations were introduced. I am just going to look at what the current Regulations – the National Minimum Wage Regulations 2015 – say.

I am also going to concentrate on the definition in relation to ‘time work’ – that is work where the employee is paid by the hour. In Shannon the work in question is technically, I think, ‘salaried hours work’ which is dealt with in a different part of the Regulations. But I don’t think this makes any difference.

Here is what the Regulations say about sleep-over shifts:

Time work where worker is available at or near a place of work

32.—(1) 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.

(2) 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.

You may need to read this more than once. Take your time.

The meaning doesn’t exactly leap out at you does it? You don’t read this and think – ‘of course! it all makes sense now that you put it that way’.

(Personally I am baffled by the words ‘even if’. They seem to suggest that the provision of suitable facilities for sleeping would otherwise make it more likely that hours spent asleep would count as working time – which seems odd. Perhaps I’m missing something.)

Anyway. What this Regulation seems to be saying is this:

• The time that you have to spend ‘available for work’ will count as working time if you are required to be at or near your place of work
• But that does not apply if the place where you are required to be is your home
• Nor does it apply to times when you are asleep – it only applies when you are ‘awake for the purposes of working’

So here comes the tricky bit.

This provision applies when workers are required to be ‘available for work‘. The implication is that they are not actually working, but the Regulations will treat them as though they are working because they are required to be at or near their place of work.

The provisions about sleeping only apply to this time when the workers are ‘available for work‘ – and it is worth noting that the Low Pay Commission report used the phrase ‘on call’ which carries the same implication of being available to do work if needed.

But what if sleeping over on the premises is the very work that you are employed to do? What if sleeping over is not something you do so that you are available for work if needed, but is an inherent part of your duties? If we can draw that distinction then we do not need to rely on Regulation 32 to turn that time spent available for work into working time because it already is. And if it already is working time then the fact that you are asleep for all or part of it does not matter because the sleeping exception only applies to time spent ‘available for work’ not to time that already counts as working time.

I think this argument is ingenious and clever.

The trouble is that, as a general rule, you do not want to present a court with ingenious and clever arguments. You want your arguments to sound like good plain common sense and I am not sure that this argument achieves that. But it has nevertheless been accepted in a number of cases. So much so that its rejection by the Court of Appeal in the cases that the Supreme Court will hear next week cases surprised almost everybody. That includes HMRC who just a few months earlier had launched a major new initiative aimed at helping the social care sector pay the huge amounts of backpay they were believed to owe workers who were working sleepover shifts. Since the Court of Appeal’s decision that has rather taken a back seat.

The Case Law

The case that first set the cat among the pigeons was British Nursing Association v Inland Revenue back in 2002. That was not about sleepover shifts, but it did challenge the traditional understanding of what ‘on-call’ or ‘stand-by’ means.  The employer ran an emergency bank nurse booking service that ran 24-hours a day. Overnight calls were answered by staff who were at home and free to do as they wished – including sleep – between calls. The Court of Appeal held that the workers were working throughout the overnight shift even when they were not taking calls. There was, after all no suggestion that the periods between calls during a normal day shift would not count as working time. Why then should the (admittedly longer and more frequent) periods between calls during the overnight shift be treated any differently?

Next was the case of  Scottbridge Construction Ltd v Wright in 2003. The employee was a ‘nightwatchman’  on the premises of a construction company. He came in at 5pm each evening and stayed until 7am the next morning. His tasks were described as ‘not onerous’ and for long stretches at time (including midnight to 5am) there was nothing specific for him to do. There was a TV that he could watch and a mattress that he could sleep on when he was not needed. The Inner House of the Court of Session (the Scottish equivalent of the Court of Appeal) held that the work he was hired to do was to be the nightwatchman for the whole of his shift. The fact that he had little or nothing to do for extended periods and was allowed to sleep on the job did not alter the fact that he was performing his duties throughout.

In 2008 these two cases were followed by the EAT in  Burrow Down Support Services Ltd v Rossiter. The employee in that case was hired to provide overnight security for a care home. he worked two nights a week running from 10pm to 8am. Apart from a handover when he arrived and a requirement to assist with breakfast from 7am he was free to sleep through the night if nothing untoward occurred. The EAT agreed with the Tribunal that the whole of his overnight shift should be treated as working time. The employee was not just ‘available for work’ overnight, the overnight shift was the work he was employed to do.  This meant that there was no need to deem him to be working under Regulation 15 and that the sleepover exception that applied under that Regulations was irrelevant.

The Burrow Down case opened the way for care workers working a sleepover shift to claim that they were working even while they slept. That was the conclusion in each of the following cases:

• Smith v Oxfordshire Learning Disability NHS Trust (EAT 2009)
• Whittlestone v BJP support Ltd  (EAT 2013)
• Esparaon v Slavikovska (EAT 2014)
• Binfield Church of England Primary School v Roll (EAT 2016)
• Abbeyfield Wessex Society v Edwards (EAT 2017)

The cases do not all go the same way, however. On a number of occasions it was held that an employee was not working throughout an overnight shift but could properly be seen as being merely ‘available for work’ so that the time spent sleeping would not count. See, for example:

• South Manchester Abbeyfield Society Ltd v Hopkins (EAT 2010)
• Wray v J W Lees & Co (Brewers) Ltd (EAT 2011)
• City of Edinburgh Council v Lauder (EAT 2012)

And indeed in the case of Shannon v Rampersad, now due to go before the Supreme Court, the Tribunal held – and the EAT agreed – that the employee could not really be said to be working throughout the night. His was genuinely a case in which he was merely ‘available for work’ – with the result that the time he spent sleeping did not count.

The Court of Appeal Decision

The decision of the Court of Appeal in the two joined cases of Mencap v Tomlinson Blake and Shannon v Rampersad runs to a pretty epic 70 pages. But its actual reasoning is easy to summarise. Basically the Court held that the Burrow Down case (see above) was wrongly decided. The idea that someone on a sleepover shift could be regarded as working throughout so that Regulation 32 did not apply to them was contrary to the ‘clear meaning of the Regulations’.

In Burrow Down the EAT had relied on the British Nursing Association case and the Scottbridge case. But in British Nursing the Court of Appeal’s decision was based on the assumption that the employees were effectively working throughout the shift – albeit with predicable lulls in the volume of calls they received. There was no suggestion that the Court would have taken the same view if the employee had actually been expected to sleep throughout the night.

In Scottbridge, the circumstances were also different from those of a genuine ‘sleep in’ arrangement. While the employee was allowed to sleep on a mattress when there was nothing for him to do it was not the case that he was specifically expected to sleep through the night with only infrequent interruptions. The Court of Appeal accepted that the distinction between working and merely being available for work was ‘subtle’ but held that it was artificial to treat a worker as working throughout a shift when it was positively expected that they would spend most of the time asleep.

The Court also placed a surprising amount of emphasis on that 1998 report of the Low Pay Commission. Since the Regulations were intended to implement the recommendations made in that report, this bolstered the view that workers on a sleepover shift should not be treated as working when they were actually sleeping.

On that basis, the Court overturned the finding in the Mencap case that the employee was working throughout her sleepover shift. She was merely available for work and so – in accordance with Reg 32 – the time she spent asleep did not count towards her minimum wage entitlement.

In Shannon the Tribunal had held that the employee was merely ‘available for work’ rather than actually working while he slept. The Court of Appeal held that this was ‘plainly right’. Since he was merely available for work it followed that Reg 32 applied and the time that Mr Shannon spent either at home or asleep did not attract the minimum wage.

So now it’s over to the Supreme Court to decide this issue once and for all.

What will the Supreme Court say?

The most important thing to remember is that the Supreme Court is not bound by any of the earlier case law. There will be lots of discussion about these cases, but when push comes to shove the Supreme Court is entitled to ignore them all. The central question the five Justices will have to decide is whether they think it makes sense to regard someone who is expected to sleep through the night as working rather than simply making themselves available for work.

In my view the Court of Appeal decision is too dismissive of the idea that someone on a sleepover shift can be working even if they are permitted to sleep for most of it. I also think the Court’s reliance on a 1998 report from the Low Pay Commission in interpreting the Regulations is just bizarre and I hope the Supreme Court does not vanish down that particular rabbit hole.

This case is actually an opportunity for the Supreme Court to consider what we mean by ‘work’. It is an odd feature of the Minimum Wage Regulations that there is no overarching definition of what constitutes work. We do have a definition in the Working Time Regulations, but that does not apply in this context and I doubt the Court will find any reference to that definition helpful.

So what is ‘work’?  To my mind you are working when you are performing a service at the behest of your employer. That might involve frantic activity, but in some circumstances it may involve no more than your physical presence – if that is the service that the employer requires of you. A care worker who works a sleepover shift does not tell their family ‘I’m off to be available for work in case I’m needed’ –  they say ‘I’m working tonight’. They sacrifice their freedom to spend their time as they choose because the employer needs them to be at work. They are not likely to be spending a restful night in a comfortable bed. Sleeping arrangements in a care home will probably not match the comfort they get at home. I don’t think it’s unreasonable to regard them as doing a night’s work in those circumstances and to expect employers to pay properly for the service that care workers are providing.

If I were sitting on the Supreme Court I think I would uphold the Tribunal’s decision in both cases. I would agree with the Tribunal that Ms Tomlinson-Blake was working when she had to stay overnight with her service users. But I would also agree that Mr Shannon falls on the other side of the line and cannot really be said to be working except on those rare occasions when he was actually called upon to help. This is the sort of distinction that should be left to employment tribunals to draw.

And yet… What niggles about this view is that I don’t think it leaves much room for Regulation 32. What is it actually there for? If being required to be present in the workplace is treated as essentially being required to work rather than just be available for work, then there is no need for a provision deeming it to be work at all.  The Supreme Court can’t just say ‘Look, Regulation 32 is a bit of a mess, lets just work around it’. They have to give it meaning. The best argument in favour of the Court of Appeal’s approach (much as I dislike it) is that it does just that. It doesn’t rely on a clever and ingenious approach and accords with what many people – particularly those who don’t have to work a sleepover shift in a care home – would regard as common sense.

Obviously I don’t know what the Supreme Court will actually say – and we will probably have to wait until late spring / early summer for a result. It should however be a fascinating case to watch on Supreme Court Live. I plan to be an enthusiastically partisan observer.