Care providers have been saved an estimated £400m in backpay after the Supreme Court ruled that staff are not entitled to the national minimum wage (NMW) for sleep-in shifts, apart from then they are required to be awake for working.
UNISON said the judgment, handed down on Friday, was a “huge blow” for care workers, while Mencap, one of the employers who contested the case, said it had saved some providers from going bust.
However, the charitable provider also said that the judgment also showed that the “out of date and unfair” law on sleep-in payments needed to be reformed. The government said it was considering the ruling.
The case was brought by support worker Claire Tomlinson-Blake, who worked for Mencap until 2017, and John Shannon, who previously worked as a care home night assistant. Both were seeking to overturn a 2018 Court of Appeal ruling that held they were not entitled to the minimum wage for all the hours of their sleep-in shifts.
‘Awake for the purposes of working’
However, the Supreme Court upheld the Court of Appeal’s judgment on the grounds that the relevant minimum wage regulations – in 1999 and 2015 – stated that workers were only entitled to the NMW when they were awake for the purposes of work – even when required to do a sleep-in shift.
At the time covered by the case, Tomlinson-Blake provided care to two vulnerable adults at their own homes, for which she was paid an allowance plus one hour’s pay at the NMW rate by Mencap for a sleep-in shift between 10pm and 7am.
Although she was permitted to sleep when she worked at night, she had to “keep a listening ear out” for the residents while asleep. She also had to attend to emergencies, which were infrequent.
According to the evidence, she “had been disturbed” six times over a 16-month period. When this happened she received no extra money for the first hour, although after that she was paid at the full day-time rate.
She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift.
Employment tribunal victory overturned
An employment tribunal, and the Employment Appeal Tribunal, found that she was working throughout her shift, even when asleep, and so entitled to the NMW, but this was overturned by the Court of Appeal.
Shannon was an on-call night assistant at a care home, from 1993-2014, where he was provided with free accommodation and paid a fixed amount per week.
He was required to be present in the accommodation from 10pm to 7am and was permitted to sleep, though had to assist if the night care worker on duty needed his help during those hours, though he was rarely called upon. As with Tomlinson-Blake, the Supreme Court upheld the Court of Appeal’s rejection of his claim for backpay.
In the court’s written ruling, Lady Arden said: “The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW purposes and the fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working.”
‘Never about the money’
Speaking after the judgment, Tomlinson-Blake said the case was never about the money, but the principle of treating staff fairly.
“Sleep-in shifts aren’t about just being on call – it’s work. Staff are constantly on guard to protect the most vulnerable in society, the sound of a cough in the night could mean someone’s in danger.
“It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently, respect for staff shows that the people we care for matter too,” Tomlinson-Blake said.
Ruling ‘a huge blow for thousands’
UNISON, which that backed the case originally brought by Tomlinson-Blake in 2016, said that the ruling was “a huge blow for thousands across the country”.
“Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance,” UNISON general secretary Christina McAnea said.
“This dire situation was ignored by the governmment for years before Covid, and again in the recent Budget.
“Today’s judgment shows ministers can’t disregard the desperate need for major reform a moment longer, that includes a well-resourced national care service that ensures staff are paid fairly to help resolve soaring job vacancies,“ she said.
‘Staff will be disappointed’
Mencap chief executive Edel Harris said its support workers did an “exceptional job” and deserved “better recognition”, and that it understood “that many hard-working care workers will be disappointed by its ruling”.
Explaining why Mencap contested the ruling, she said: It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered.
“We believe that the legislation covering sleep-in payments is out of date and unfair and we call on government to reform it.
Martin Green, chief executive of provider umbrella body Care England, said after a lot of uncertainty, the Supreme Court ruling was “useful”.
“Our staff are our best resource and need to be valued as such, this is all part of the broader picture of the much-needed reform of the adult social care sector which we will continue to press the government on,” he added.
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