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Royal Mencap Society vs Tomlinson-Blake in the Supreme Court - a personal injury perspective

23 March 2021

Ian Slater considers the implications of the recent Supreme Court decision in Royal Mencap Society vs Tomlinson-Blake for care claims in serious personal injury cases.

Just a quick update on the Supreme Court decision in the matter of Royal Mencap Society vs Tomlinson-Blake (2021). There were other associated appeals heard at the same time but for the purposes of this article we will just go with the headline act.

It is a difficult case because unlike the slightly rarified atmosphere of personal injury cases, this concerned a dedicated support worker employed by Mencap to care for people with a learning disability.

For some time we have been discussing the increasing cost of care and the impact of the social care crisis (of which Mrs Tomlinson-Blake's situation is yet another sad example). We have gone beyond discussion to build a care cost database encompassing over 150 true catastrophic injury cases [TBI, SCI and amputation cases only] and we have been watching Mrs Tomlinson-Blake's case closely as it had the potential to dramatically increase the cost of a sleeping night care regime.

As referenced above this was not a personal injury case but, when the circumstances are laid out, you will readily appreciate how and where it could have been used.

To describe the background briefly: Mrs Tomlinson-Blake was a highly qualified care support worker who provided care to 2 vulnerable adults in their own home. When she worked nights she had to remain at her place of work but was permitted to sleep. For each night she undertook a sleep-in shift she was paid an allowance plus one hour's pay at the national minimum wage [NMW] rate.  If she was interrupted and required to work she would then receive pay in line with her hourly rate and her time would count as working time. This had been standard practice throughout the care industry and the basis of cost calculations for provision of the service up until her case. She initially brought Employment Tribunal proceedings to recover arrears of wages on the basis that she was entitled to be paid at the NMW for each hour of her sleeping shift.

We are all familiar with the type of sleeping care arrangement that one typically tends to see built into serious personal injury cases: a 10 hour night shift with the carer paid for six hours. In the matter of JR vs Sheffield Teaching Hospitals NHS Trust [2017] EWHC 1245 (QB), Mrs Sargent explained that the convention for a sleeping carer would be that he or she would expect to get up no more than twice in the course of the 10 hour night. She argued that whenever such a carer is disturbed more than twice in the night he or she would expect to be paid a waking night rate.

Mrs Tomlinson-Blake's case had the potential to create an argument that if sleeping attracted payment at the NMW for each hour that she was present on site then the principle could be translated into civil damages, and instead of seeing a night sleeper paid for 6 hours (but working for 10) we would see a night sleeper paid for each of their 10 hours.

The Supreme Court decided in favour of Mencap. Giving judgment, Lady Arden concluded that the meaning of the sleep-in provisions in both the 1999 and 2015 National Minimum Wage Regulations was such that if a worker is permitted to sleep during the shift and is only required to respond to limited emergencies then the [sleeping] hours are not included in the NMW calculation for "time worked" or "salaried hours".

She went on to explain that if the requirement on the worker is to respond to emergency calls then the worker's time spent sleeping is not included in the NMW calculation and only the time the worker actually spends dealing with the emergency is included.

The last comment is potentially interesting as the Supreme Court was notably silent on Mrs Sargent's 'Rule of Two', instead preferring to concentrate on the time spent dealing with emergencies rather than the number of emergencies that might occur.

From this it certainly appears that if a claimant is a good sleeper then we should be looking at a negotiated price for a night shift which is not dictated solely by the hours worked.

Further Reading