Last week, the Court of Appeal (CA) handed down its much-anticipated decision in the case of Royal Mencap Society v. Tomlinson-Blake. The decision saw the CA overturn the ruling of the Employment Appeal Tribunal (EAT) which had held that carers working sleep-in shifts were entitled to the National Minimum Wage (NMW) for every hour of their shift, regardless of whether they were awake and carrying out relevant duties. In overturning this decision, and a significant body of case law, the CA has held that sleep-in workers are only entitled to the NMW when they are awake and "actually working". They are not entitled to the NMW when they are asleep as they are then only "available for work".

As has been typical in the care sector, Mrs Tomlinson-Blake received a flat rate payment of £22.35 plus one hour's pay of £6.70 for a nine-hour-long sleep-in shift. She contended that this pay fell below the NMW as, when accounting for every hour spent at work, her wage equated to around just £3.23 per hour. The EAT rejected Mencap's argument that Mrs Tomlinson-Blake was not awake and carrying out her duties for the majority of her shift and was therefore not entitled to remuneration for those hours. In doing so, they took the following factors into account:

• Mencap's statutory obligation to have someone on the premises;
• Mencap's requirement to have someone present to fulfil their obligations to the council; and
• Mrs Tomlinson-Blake's responsibility to be present and use her professional judgement as to whether attention was required through the night.

In overturning this decision the CA ruled that only time spent awake and "actually working" should be included in the calculation of NMW payments and referenced the exclusion under Regulation 32 of the NMW Regulations 2015. This Regulation specifies that the NMW is only payable during hours "when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping". A plain reading of this regulation was favoured over the EAT's multifactorial test above. The CA stated that this approach is limited to the facts of sleep-in workers who are "contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity".

This decision has been welcomed by employers in the care sector, given the significant financial ramifications that the EAT's decision was set to impose on the sector in terms of both increased staffing costs and claims for up to six years' worth of back pay. Before the decision was released Martin Green, the Chief Executive of Care England, stated that "if the existing decision of the Employment Appeal Tribunal is upheld it would be a watershed moment for the sector, with profound effects for the viability of residential domiciliary and supported care".

Understandably this outcome will be disappointing news for individual care workers. However, many organisations in the care sector are saying that this landmark ruling is a major boost towards safeguarding the ongoing support for vulnerable people and sustainability of the sector.

The CA decision is, of course, subject to any further appeal to the UK Supreme Court. Unison, which supported Mrs Tomlinson-Blake, confirmed that it will consider appealing the decision following its release. Given some of the reactions that it has been met with on social media by various commentators, it is fair to assume that this may not be the end of the matter. We will keep you updated with any developments.