Bumping is the process of moving a potentially redundant employee into another role, and making the employee currently performing that role redundant.
On 13 July 2018 the Court of Appeal held that the essence of a “sleep-in” contract is that by arrangement workers sleep at the work place and therefore are available for work, but not undertaking actual work. This decision in the case of Royal Mencap Society v. Tomlinson-Blake reversed the judgment of the Employment Appeal Tribunal and in finding that being available for work was not the same as actually working, the Court also decided that the National Minimum Wage was not payable when only being available for work, but not actually working.
Social Care Sector
This decision has been greeted with a huge sigh of relief in the social care sector where many organisations were facing considerable back-pay claims on the basis that the employees had been paid a contractual rate for a sleep-in, but that the contractual rate did not meet the National Minimum Wage. Unless this judgment is reversed in the Supreme Court, care organisations are unlikely to face what would have been a series of expensive claims.
The Court concentrated on the artificiality of describing someone as “working” or “actually working” during a shift when they were positively expected to spend a substantial amount of that shift asleep.
National Minimum Wage Regulations
Technical aspects of the judgment were that sleepers-in are to be characterised as being available for work within the meaning of Regulation 15(1)-32, rather than actually working within the meaning of Regulation 3-30. They therefore fall within the exception of Regulation 15(1)(a)-32(2) of the National Minimum Wage Regulations and the result is that the only time which counts for National Minimum Wage purposes is the time when the worker is required to be actually working.
Employers are still likely to face claims being made by sleepers-in, in respect of the period of time that they actually undertake work. This will be a fact specific issue in each individual case, and indeed may vary from night to night, so that whilst the judgment is to be welcomed it will lead to some further discussions and calculations as to the amount of actual work undertaken, if any during a sleep-in.
It is understood that UNISON on behalf of the employee, is intending to appeal this decision of the Court of Appeal to the Supreme Court due to the importance of this decision to the social care industry and as they view it as having a particularly severe effect on the lowest paid of their members. Whether this case reaches the Supreme Court or not will be of interest, as will the possibility that the government will legislate to address the whole issue of what is and is not a sleeping wage, and whether it will be in the future subject to National Minimum Wage Regulations.