Care charities spared £400m payout after Supreme Court rejects sleep-in carers appeal

The long-running case centred on whether sleep-in carers should be eligible to be paid at least the minimum wage while asleep on a shift

An appeal by sleep-in care workers to receive the minimum wage when on call had been dismissed by the Supreme Court, saving charities an estimated £400m.

The decision today by Lady Arden brings an end to the long-running battle about the legal status of sleep-in care workers, who often stay overnight with vulnerable people in case of emergencies. 

The case brought against the charity Mencap concerned the calculation of the time spent by employees for the purposes of the National Minimum Wage.

Sleep-in carers are typically paid a flat rate for time spent asleep, but a Mencap care worker had argued they should be entitled to the NMW for the entirety of the shift, regardless of whether they were awake. 

But dismissing the case, Arden said the NMW was fixed by the government following consultation with the Low Pay Commission, and her judgment was in accordance with provisions set out in both the NMW 1999 regulation and the 2015 regulations.  

Arden concluded that the meaning of the sleep-in provisions was that if the worker was permitted to sleep during the shift and was only required to respond to emergencies, the hours in question were not included in the NMW calculation for time work or salaried hours work, unless the worker was awake for the purpose of working.

In her judgment, Arden said: “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.”

In 2018, the Court of Appeal overturned the decision of a 2015 employment tribunal that found former Mencap care worker Claire Tomlinson-Blake was entitled to receive the national minimum wage for each hour of sleep-in shifts completed, plus six years of back payments.

Charities had previously typically paid sleep-ins a flat rate of between £35 and £45, plus an hourly rate for any time spent providing care rather than being asleep.

An appeal against the Court of Appeal’s decision was lodged in August 2018 by the trade union Unison, with the Supreme Court giving the go-ahead in February 2019 for the case to return to court

Mencap had previously estimated that if the rules were changed to allow back pay for affected workers, it could cost the social care sector £400m and £20m for Mencap specifically.

Edel Harris, chief executive of Mencap, said the judgment recognised that care workers had been on the coronavirus front line and deserved better recognition in all forms. 

She said: “Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. Sleep-ins are a statutory care service, which should be funded by local authorities and, ultimately, the 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. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered.”

Mencap called on the government to reform legislation covering sleep-in payments, which it described as “unfair”. 

The charity also called for a review of social care and more money to put into the system.

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