Royal Mencap Society v Claire Tomlinson-Blake

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Wilson,Lady Arden,Lord Carnwath,Lord Kitchin
Judgment Date19 Mar 2021
Neutral Citation[2021] UKSC 8

[2021] UKSC 8

Supreme Court

Hilary Term

On appeal from: [2018] EWCA Civ 1641

before

Lord Kerr

Lord Wilson

Lord Carnwath

Lady Arden

Lord Kitchin

Royal Mencap Society
(Respondent)
and
Tomlinson-Blake
(Appellant)
Shannon
(Appellant)
and
Rampersad and another (T/A Clifton House Residential Home)
(Respondents)

Appellant

(Tomlinson-Blake)

Sean Jones QC

Andrew Edge

Leo Davidson

(Instructed by UNISON Legal Services (London))

Appellant

(Shannon)

Caspar Glyn QC

Chesca Lord

(Instructed by Thomas Mansfield Solicitors)

Respondent

(Royal Mencap Society)

David Reade QC

Niran de Silva QC

Georgina Leadbetter

(Instructed by Simons Muirhead & Burton (London))

Respondents

(Rampersad and Rampersad)

Judy Stone

Christopher Parkin

(Instructed by Morrison & Foerster LLP (London))

Intervener

(Local Government Association)

Anne Redston

(Instructed by the Local Government Association Legal Department)

Heard on 12 and 13 February 2020

1

Following the hearing of these appeals, Lord Kerr of Tonaghmore, who had presided over it, sadly died while in the course of preparing a judgment upon them. In those circumstances the court made a direction under section 43(2) of the Constitutional Reform Act 2005 that the court was still duly constituted in the proceedings by the remaining four justices. The direction was made in the light of the consent of the parties and of compliance with the other requirements of subsection (3).

Lady Arden
Overview
2

No one would doubt the importance in society today of carers and wardens who help to look after those who through age or infirmity cannot look after themselves. Parliament has in some cases imposed statutory duties on public authorities to provide carers. Carers are among those who may have to work sleep-in shifts, ie shifts when they have to be at or near their place of work but during which they may, with the permission of their employer, sleep for some or all of that time. Such workers who may sleep during their shift hours (whom I will call “sleep-in workers”) may be among the low paid, and hence the key question with which these appeals are concerned: how is the number of hours in their case to be calculated for the purposes of the National Minimum Wage (or “NMW”)?

3

In my judgment for the detailed reasons given below, the answer to this question turns in the case of Mrs Claire Tomlinson-Blake on the meaning of regulation 32 of the National Minimum Wage Regulations 2015 (“the 2015 regulations”), which came into force on 6 April 2015 and apply to the whole of the United Kingdom. In her case, on the facts as found by the employment tribunal, the effect of the relevant regulations, in particular regulation 32 applying to “time work”, is that the number of hours she worked excluded the hours when she was permitted to sleep unless she was awake for the purpose of working.

4

In the case of Mr John Shannon, a night care assistant, the regulations, being in his case those applying to “salaried hours” work, within the preceding National Minimum Wage Regulations 1999 (“the 1999 regulations”), have the same effect. In those circumstances I would dismiss both these appeals.

5

In determining the meaning of the regulations, the Court may take into account documents which show the mischief to which the regulations were directed. In this case we were taken to the reports of the Low Pay Commission (or “LPC”), which, as first recognised in Walton v Independent Living Organisation Ltd [2003] EWCA Civ 199; [2003] ICR 688 are particularly relevant where they contain recommendations which have been accepted by the government, and so I start by giving a brief description of the NMW and explaining the role of the LPC in relation to the NMW.

The National Minimum Wage and the role of the Low Pay Commission
6

Most people will be familiar with the existence of the NMW. It was introduced by the National Minimum Wage Act 1998 (“the NMWA 1998”). It is a single hourly rate (with a lower rate or rates for certain workers) fixed by a government minister following a report from the LPC. When the President of the Board of Trade, the Rt Hon Margaret Beckett MP, made a statement in the House of Commons on 18 June 1998 accepting the recommendations of the First Report of the LPC, she stated that setting the NMW at the levels then announced would help some “2m workers escape from poverty pay, without adverse effects on jobs or inflation. That will include 1.4m women; more than 1.3m part-time workers; some 200,000 young people; about 110,000 homeworkers; approximately 175,000 lone parents who work; and some 130,000 ethnic minority workers.” (Hansard (HC Debates), 18 June 1998, vol 314, col 508). Those figures will no doubt have changed since 1998, but the NMW remains a measure of considerable importance to millions of workers in the United Kingdom and part of the infrastructure of our democratic society.

7

A crucial question for an employer to whom the NMWA 1998 applies is whether the remuneration he is paying to his workers is at least equal to the NMW because, if it is not, he is liable to pay arrears and to financial and criminal penalties. In order to ascertain whether an employer is paying the NMW, there has to be a calculation of the worker's hourly pay, and so there are detailed rules as to what payments or benefits may be taken into account and what deductions may be made. The number of hours is calculated by rules which differ according to whether the work is salaried hours work, time work, output work or unmeasured work. To determine the correct classification, it is necessary to look at the way the worker is paid. If the employer pays the worker a salary calculated on an annual basis for an ascertainable number of hours, it is salaried hours work (for the full meaning of salaried hours work, see regulation 4 of the 1999 regulations and regulation 21 of the 2015 regulations); if he pays the worker by reference to a set number of hours, and not by way of salary, it is time work (for the full meaning of time work, see regulation 3 of the 1999 regulations and regulation 30 of the 2015 regulations, set out in para 17 below); if he pays the worker by reference to the unspecified hours that he works, it is unmeasured work (for the full meaning of unmeasured work, see regulation 6 of the 1999 regulations and regulation 44 of the 2015 regulations); if he pays the worker by reference to piecework, it is output work (for the full meaning of output work, see regulation 5 of the 1999 regulations and regulation 36 of the 2015 regulations).

8

The provisions that regulate the calculations of the hours which a worker works for the purposes of the NMW are separate from those that apply for the purposes of the Working Time Regulations 1998, which have not formed any part of the argument in this case. In the case of the NMW, there are exceptions to the hours that may be counted. In the case of time work and salaried hours work, there is a “home” exception. A worker, if not actually working but who is available for work, may not count time when he is available if he is at home. For the same two types of work, there is also the “sleep in” provision now contained in, respectively, regulation 32 and regulation 27 of the 2015 regulations, which is at the heart of these appeals, to which I will come when I consider the legislative history of the regulations. The facts of Mrs Tomlinson-Blake's case illustrate how these provisions work. I summarise the facts of her case and those of Mr Shannon in the next section of this judgment.

9

The current, statutory LPC was established pursuant to section 8 of the NMWA 1998. It has an authoritative and influential role in the setting of the NMW, which is done periodically. Its membership is drawn from both sides of industry and those with relevant knowledge and experience (NMWA 1998, Schedule 1). The reports of the LPC disclose the depth of investigation and consultation which it undertakes in discharging its statutory responsibilities. The Secretary of State can refer matters to it for its consideration at any time in accordance with section 6 of the NMWA 1998, and, if its recommendations are required to be implemented by new regulations, the Secretary of State must inform Parliament if those recommendations are not accepted and why (section 5(4) of the NMWA 1998 as applied by section 6(3) of that Act). That means, as I see it, that if the Secretary of State accepts certain recommendations, the court should approach the regulations on the basis of the presumption that they do in fact implement the LPC's recommendations.

10

Significantly, the pre-legislative LPC (under the chairmanship of Professor Sir George Bain) was asked to recommend the initial level for the NMW, and the method by which rates of NMW should be calculated, and that was done in the first report of the LPC, to which I refer below. The government largely accepted the recommendations in that report. Accordingly, that report is an important aid to the interpretation of the 1999 regulations, which deal with the calculation of the NMW. These have been amended in respects which are generally not material to these appeals and were then consolidated in the 2015 regulations. The explanatory note to the 2015 regulations states that those regulations “remake [the 1999 regulations] and consolidate the amendments made to those Regulations” and the explanatory memorandum prepared by the sponsoring department (the Department for Business, Innovation and Skills) for Parliament also stated that they did “not introduce substantive changes to the rules”.

Legislative history of the Regulations
11

The NMWA 1998 is a framework Act, setting out the details of the NMW for which primary legislation was required. Under section 5(2), before making the 1999 regulations, the Secretary of State had to refer to the LPC certain matters including “(c) what...

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