Mencap wins Supreme Court case over sleep-in pay

The Supreme Court has ruled in favour of Mencap over a long-running case about whether sleep-in carers are entitled to be paid national minimum wage for hours worked

The case was brought by a care worker, Clare Tomlinson-Blake, and focused on whether home workers who are required to remain at home in their shift and/or residential care workers who ‘sleep in’ are entitled to the national minimum wage for time that is not spent actually performing some specific activity.

The decision confirmed that sleep-in care workers are not entitled to national minimum wage.

The Supreme Court concluded that the meaning of the sleep-in provisions in the 1999 regulations and the 2015 regulations is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the national minimum wage calculation for time work or salaried hours work unless the worker is awake for the purpose of working.

At stake in the case was an estimated £400m in back pay for care staff who worked sleep-in shifts.

Edel Harris, chief executive of the Royal Mencap Society, said: ‘Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400m. Sleep-ins are a statutory care service which should be funded by local authorities, and ultimately government. 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.

‘We believe that the legislation covering sleep-in payments is out of date and unfair and we call on government to reform it. More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better. It is disappointing that there is still no plan for social care reform.

‘Until there is a more sustainable solution from government, we plan to continue to pay top ups for sleep-ins, as we have done since 2017, and will urge local authorities to continue to cover this in their contracts.’

Reacting to the Supreme Court ruling, Kate Palmer, HR advice director at employment law consultancy, Peninsula, said: ‘Care operators across the country will no doubt breathe a sigh of relief at the Supreme Court’s ruling, especially as the implications for the Court going the other way looked set to be substantial.

‘In short, the Court has confirmed today that care companies are acting within the confines of the law to only pay workers on sleep-in shifts the national minimum wage for the time they are required to work, and do not need to pay for the time they spend asleep.

‘For care companies, this certainly seems like the end of the story. Not only can they continue to operate as they have been doing and won’t need to make changes to how staff are paid, they now do not face potential claims for failure to provide the national minimum wage and, perhaps most significantly, this particular case cannot be appealed.

‘In reaching their decision, the Supreme Court seems to have adopted the same approach as the Court of Appeal, whose decision back in the summer of 2018 actually went against previous lower courts' findings. Fundamentally, the law surrounding the payment of the national minimum wage includes specific provisions for those on sleep-in shifts, and that correct application of the law ultimately meant this claim had to fail. The Court was clear; however, that this ruling only applies to shifts were an employee is expected to sleep during their shift, which the claimants in this case were.’

'It remains to be seen what the ongoing implications of this ruling will be, with many operators in the care sector calling on the government to take another look at the law surrounding sleep-in shifts and payment of the national minimum wage. However, until we see a response from the government, employers should take this ruling as definitive. Workers on sleep-in shifts are only entitled to the national minimum wage for the time in which they are required to work.'

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