Supreme Court rules carers on ‘sleep-in shifts’ are not entitled to minimum wage

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Carers who have to sleep at their workplace in case they are needed overnight are not entitled to the minimum wage for their whole shift, the Supreme Court has ruled.

On call

Claire Tomlinson-Blake, a Mencap support worker in the East Riding of Yorkshire, appealed against a Court of Appeal ruling that carers are only entitled to the minimum wage when they are required to be awake for work – and not while asleep.

She challenged the decision at the UK’s highest court at a hearing in February last year alongside a linked appeal brought by John Shannon, a Surrey care home worker whose case was heard along with Tomlinson-Blake’s at the Court of Appeal.

On 19 March, the Supreme Court dismissed both Tomlinson-Blake and Shannon’s appeals.

In the court’s written ruling, justice Mary Arden said that “sleep-in workers … are not doing time work for the purposes of the national minimum wage if they are not awake”.

She added:

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 national minimum wage 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.

I consider that the reasons for dismissing this appeal given by the (employment) tribunals and the Court of Appeal were correct.

The judge also said:

The arguments in this case were completed before the first coronavirus lockdown, which has introduced stay-home measures for many workers.

We have therefore had no argument as to any effect of those measures on the calculation of the national minimum wage. I wish to make that clear.

Principles

Speaking after the judgment, Tomlinson-Blake said:

This case was never about the money. ​It was about 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.

Edel Harris, chief executive of the learning disability charity Mencap, said many care workers will be disappointed by the ruling, and called on the government to reform legislation covering “sleep-in” payments, which she described as “out of date and unfair”.

She said:

Mencap contested this case because of the devastating unfunded back-pay liabilities facing providers across the sector.

This was estimated at £400 million. Sleep-ins are a statutory care service which should be funded by local authorities and, ultimately, Government.

Care England, the body that represents independent care providers, said it welcomed the ruling. Professor Martin Green, chief executive of Care England, said:

After a lot of uncertainty it is useful to have this ruling from the Supreme Court. 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.

Good news for the care-for-profit sector

Matthew Wort, a partner at Anthony Collins Solicitors, which represented Care England in its intervention in the Supreme Court case, said the decision meant care providers “no longer face a potentially catastrophic financial outcome”.

He said:

This case was not about what care workers should be paid. Instead, it focused on the interpretation of national minimum wage regulations, with the law and previous government guidance making clear that carers are not working while asleep.

Today’s judgment puts an end to many years of uncertainty. It should be seen as a line in the sand, with the focus now on ensuring changes are made in how workers are remunerated to ensure appropriate pay for time asleep.

However, trade union Unison described the decision as a “huge disappointment” and “a huge blow” to care workers.

Unison general secretary Christina McAnea said:

No-one is a winner from today’s judgment. Everyone loses until the Government intervenes to mend a broken system that relies on paying skilled staff a pittance.

This dire situation was ignored by the Government 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.

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