Supreme Court

The Supreme Court today dismissed an appeal that care workers should receive hourly pay for ‘sleep-in’ shifts.

In the case of Mencap v Tomlinson-Blake, the court ruled in favour of Mencap stating that only the time that care workers spent awake performing work should be classified as working for National Minimum Wage purposes. Staff are not entitled to the National Minimum Wage for time not spent performing some specific activity.

The ruling means the time a worker is required to sleep on site does not count towards minimum wage calculations.

Had the court ruled otherwise, care providers could have become responsible for stumping up  backdated National Minimum Wage claims and fines for breaching regulations.

The case focused on The Royal Mencap Society care worker Claire Tomlinson-Blake, who worked from 10pm to 7am caring for two men with autism and learning difficulties, on a sleep-in shift, for which she was paid a flat rate of £22.35 plus one hour’s pay of £6.70 for the time she was asleep but keeping out a ‘listening ear’ in case her charges needed help during the night.

In 2016, an employment tribunal initially ruled that she should be paid for the time she was asleep, a judgement overruled today by the highest court in the land.

Care England, the representative body of independent adult social care providers, immediately welcomed the “clarity provided by the Supreme Court”, with its chief executive Professor Martin Green, saying: “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.

“Care England continues to call for a 10-year plan for adult social. a key part of which is a workforce plan, akin to that of the NHS, where career progression, pay and rewards are identified. We hope that the government will take account of this issue and the sector’s economic fragility in its forthcoming spending review.”

Interviewed by City AM, Matt McDonald, an employment partner at law firm Shakespeare Martineau, said: “This ruling will be disappointing for any care worker who believes they should be paid minimum wage for the entirety of the time spent on ‘sleep-in’ shifts. The case has been in the pipeline for some time and if the Supreme Court had sided with Mrs Tomlinson-Blake, the shockwaves would have been felt throughout the care sector.

“If the Supreme Court’s decision had gone the other way, the bills facing care providers for historic underpayments would have been substantial and, in some cases, devastating. Many simply couldn’t have afforded to pay and we would therefore seen a large number of providers teetering on the brink of financial ruin, putting further pressure on UK care standards.”

Following the ruling, the Voluntary Organisations Disability Group (VODG) called on the government to instruct the Low Pay Commission to establish a fair rate of pay for social care workers who provide overnight support

VODG chief executive Dr Rhidian Hughes said: “Clearly, there are no winners or losers in this case. While the judgement provides some welcome clarity to this issue, there is still significant uncertainty that can only be resolved by the Low Pay Commission carrying out a consultation and review, and for the Department of Health and Social Care to bring forward a workforce strategy for the social care sector.

“We are concerned of potential knee-jerk reactions of local authority commissioners up and down the country which could see funding reduced, and therefore the pay of staff affected. 

“The coronavirus pandemic has highlighted the extent to which social care is a vital part of a civilised society. We need to value those who care for disabled people, including when they are available at night, and that includes a fair rate of pay.

“Social care providers, who were already operating in a challenging financial landscape before the pandemic, now face significant new financial, workforce and health and safety pressures.

“This decision, coming as care workers remain on the front line of the pandemic, illustrates that they deserve fair reward for work that supports disabled people to be more independent.

“The government must instruct the Low Pay Commission to consult with providers, commissioners and other stakeholders and then recommend a fair rate of pay for sleep in shifts. Ministers must also ensure that local authorities have the funding to make that a reality in their contracts with social care providers.”

“This case was not about what care workers should be paid – it was about the narrow interpretation of National Minimum Wage regulations. Now the sector has some clarity on this issue, there is an opportunity to introduce a system that enables government, commissioners, and providers to place proper value on the work of social care professionals, and on the vital care and support they provide to disabled people.

“The ad hoc arrangements of the past must be replaced with a new reality – one that provides sustainable, clear, and fair funding arrangements for sleep in shifts. We cannot have a postcode lottery in pay for social care workers doing such important work. Anything that worsens retention will only impact on disabled people who rely on social care services and lower the quality of care.”

Date published: March 19, 2021

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