Supreme Court hearing on sleep-in care workers case gets under way

In 2018 the Court of Appeal overturned a 2015 employment tribunal decision that a Mencap carer was entitled to the minimum wage for each hour of sleep-in shifts completed, plus six years of back payments

The Supreme Court
The Supreme Court

The Supreme Court today heard the beginning of an appeal against the decision to deny sleep-in care workers the minimum wage when on call, saving charities an estimated £400m.

The case, which is expected to last two days, is the latest in a long-running battle about the legal status of sleep-in care workers, who often stay overnight with vulnerable people in case of emergencies.

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 has 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.

It is not yet known when the Supreme Court will publish its decision on the case.

Matthew Wort, partner at Anthony Collins Solicitors, who helped Care England in its intervention in the Court of Appeal case, said the Supreme Court should support the Court of Appeal’s decision.

“This case is not about what care workers should be paid,” he said. “Rather, it is focusing on the interpretation of national minimum wage regulations.

“The law appears to make it clear that employees are not working while asleep and government guidance in place for many years backed that up.

“It is not the Supreme Court’s role to decide on public policy grounds what the law should be, but to interpret the legislation to reflect the intention of parliament when the regulations were introduced.

“For that reason, I consider it should accept that time spent asleep during a sleep-in shift does not attract the national minimum wage.”

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