Care providing businesses will have noted with interest the unanimous decision of the Supreme Court to dismiss the appeals of the Claimant in the Tomlinson-Blake v Mencap case.
The court ruled, with Lady Arden giving the leading judgment, that Mrs Tomlinson-Blake was only entitled to National Minimum Wage (NMW) when she was actively carrying out her duties whilst on a sleep-in shift.
Lady Arden said that Tomlinson-Blake was only ‘available for work’ whilst sleeping on a sleep-in shift and should only be paid NMW for the periods of time when she was actually carrying out her duties.
The decision is a relief because, if the court had ruled in favour of Tomlinson-Blake, this could have meant many employees were owed back pay for a shortfall in the payment of NMW. The consequences of not paying the NMW are costly. Individuals who are not paid the correct NMW for hours worked can recover up to six years in underpayments. Her Majesty’s Revenue and Customs (HMRC) can also issue fines up to a maximum of £20,000 per worker. HMRC also has powers to publicly name employers who fail to pay and ban individuals acting as directors of the company for up to 15 years.
