After two days of legal argument, the Supreme Court has retired to reach its decision on the Tomlinson-Blake v the Royal Mencap Society.
A ruling isn’t expected for another three months, but in the meantime, Matthew Wort, a partner at Anthony Collins Solicitors, has expressed his opinion on which way the Supreme Court will go.
Wort, who helped Care England in its intervention on the case at the Court of Appeal, said he is “cautiously optimistic” that the Supreme Court will accept the case put forward by Mencap that the National Minimum Wage (NMW) regulations seek to achieve a “bright line”, such that in all cases where someone is required to sleep at a place of work and are provided with suitable facilities for sleeping, they are only working when they are awake and working.
During the hearing, Lord Wilson recognised the importance of having clarity for employers in what should be paid given the potential criminal sanctions if the NMW is not paid.
Wort explained that the “multi-factorial test” put forward on behalf of Tomlinson-Blake to determine whether an individual is ‘working’ even though they may be asleep, would make it “very hard” for any provider to have clarity as to how the NMW regulations would be interpreted in their circumstances.
“My feeling is that the judges will want to get through the uncertainty created by the lower courts in various decisions over the years and take a straight forward interpretation of the Regulations, reflecting the intention of parliament at the time. However, they have lots of previous confusion in the cases to wade through so I am afraid we need to wait and see where they end up,” Wort said.
The partner stated that a number of comments were made that could suggest support for the sleep-in worker’s position.
“For example, Lord Kitchin recognised how the arguments on behalf of Mencap would mean a worker who expects to be disturbed six times a night would still only be entitled to be paid for their disturbance time. This highlights one of the gaps in the legislation that the courts have effectively been seeking to fill,” he said.
Wort explained that if the decision goes in Mencap’s favour, care providers will then need to address their future approach to payment for sleep-ins, ensuring they remain competitive in the market, but working within the financial envelope available.
He said the Low Pay Commission should be tasked with recommending a minimum payment for sleep-ins.
If the decision goes against Mencap, it could mean care providers having to assess their payments to workers over the last six years with the potential of HMRC enforcement action against them if there is a shortfall in NMW.
Care charities have estimated a sector-wide liability of £400m if all time spent during sleep-ins is found to be working time for NMW purposes.
“The six years will run from a future date – either the date of a Notice of Underpayment being served on the employer or the date a provider joins any new social care compliance scheme that may be established. All eyes would turn to HMRC to see whether and when they will establish a new compliance scheme,” said Wort.
“It would also mean an immediate need to ensure NMW is paid for all sleep-ins moving forward, and for funding to be found for that. Providers may wish to engage with their commissioners now to see if they will commit to funding NMW for sleep-ins if the judgement goes against Mencap.”
Click here to read more details about the case.