The Supreme Court has today issued its long- awaited judgment in the cases of Royal Mencap Society v Tomlinson- Blake and Shannon v Rampersand and another (T/A Clifton House Residential Care Home).
The judgment dismissed the appeals of Mrs Tomlinson Blake and Mr Shannon and held that National Minimum Wage (NMW) is not payable for the whole of sleep-in shifts. It is only payable for those parts of sleep-in shifts when the worker or employee is “awake for the purpose of working”.
What do you need to do?
This decision will come as a welcome relief to employers in the care sector that had limited payments to employees and workers on sleep-in shifts to nighttime “allowances” and who were concerned at the significant financial implications which would arise from a Supreme Court finding that NMW would be payable.
The decision may have more complex consequences for those employers who had already decided to pay NMW for the whole of sleep-in shifts off the back of earlier Employment Tribunal and Employment Appeal Tribunals’ decisions that NMW should be paid for the whole of a sleep-in shift.
Those employers will now need to consider whether to continue with that practice or whether to seek to reduce payments to the lower level that has been confirmed by the Supreme Court today.
Seeking to reduce the rate of pay would amount to a change of terms of conditions and would require careful handling to avoid potential claims (including breach of contract, constructive (unfair) dismissal) and employee relations issues. Depending upon the number and location of the employees involved there could also be the requirement for collective redundancy consultation.
For those employers who are charities, there may also be other issues at play in terms of the duties and responsibilities of charity trustees. Graeme Hughes from our Charities Team would be able to explore these with you.
If you have any queries about this decision and the impact it may have on your organisation, or indeed any queries about the NMW generally, please do get in touch with a member of our Employment Team.
