Mrs Tomlinson-Blake is a highly qualified and extensively trained care support worker employed to provide care and support to two men, each in a private property, both of whom have autism and substantial learning difficulties.

She was also required to carry out a sleep-in shift from 10 pm to 7 am at a flat rate of £22.35, plus one hour’s pay of £6.70 (£29.05 in total). No specific tasks were allocated in the sleep-in shift, but she needed to keep a ‘listening ear’ out during the night in case her support was needed, and she was expected to intervene where required or respond to requests for help (this intervention had been required six times in the previous 16 months). If she needed to provide support during the night, the first hour was unpaid (as it was already built into her payment for the sleep-in) but any further hours were paid in full.

At the Employment Tribunal and at the Employment Appeal Tribunal, it was held that she was entitled to be paid the National Minimum Wage for all of her sleep-in hours, regardless of whether she was awake or working. This was overturned by the Court of Appeal and then appealed to the Supreme Court.

Mr Shannon worked for the Clifton House care home as an ‘on-call night care assistant’ with accommodation in the studio within the care home. He was required to be in the studio from 10 pm to 7 am. He was able to sleep during those hours but had to respond to any request for assistance by the night care worker on duty at the home.

In return, he received free accommodation and £50 per week (later £90 per week). He was very rarely asked to assist the night care worker. His claim in the Employment Tribunal was that he was entitled to have all hours between 10pm and 7am counted as salaried hours work for National Minimum Wage purposes for 365 days per year (he had not taken any time away from the studio). His claim for arrears amounted to almost £240,000.

The Employment Tribunal dismissed his claim for National Minimum Wage arrears. He was unsuccessful at the Employment Tribunal, Employment Appeal Tribunal and the Court of Appeal.

The Supreme Court ruled against both claimants, dismissing both appeals. They found that if an employer has given the worker the hours in question as time to sleep and the only requirement on the worker is to respond to emergency calls, the worker’s time in those hours is not included in the National Minimum Wage calculation unless the worker actually answers an emergency call. The only time which would be included is when they are awake for the purposes of working.

They rejected the argument that because the employee is subject to the employer’s instructions, they are entitled to a wage. They also rejected the argument that the employee would be entitled to National Minimum Wage simply because what they do produces value for the employer or enables the employer to say that they have fulfilled their duty to someone else.

For cases involving the sort of sleep-in shifts that are prevalent in the care sector, this finally settles the question of whether workers need to be paid for the entire period of their shift or just the time they spend actually working.

The ruling will be warmly welcomed by care providers who have traditionally paid sleep-in allowances.

As neither the employer or employee will know how many times, and for how long, the employee will be disturbed during sleep-in shifts, this is treated as ‘unmeasured work’ and there are two ways this can be dealt with for National Minimum Wage purposes:

1. Pay the employee for every hour they are awake and working during the sleep-in shift or
2. Reach a daily averaging agreement

The daily averaging agreement must:

• be in writing
• be made before the start of the relevant pay reference period
• set the average daily number of hours the worker is likely to spend in the pay reference period actually doing unmeasured work
• contain a ‘realistic’ average daily number of hours (the onus is on the employer to prove this figure is realistic)