Supreme Court permits appeal on care charity back-pay decision

The Court of Appeal last year overturned an employment tribunal ruling that sleep-in carers were entitled to the minimum wage for each hour of shifts completed

Supreme Court
Supreme Court

The Supreme Court has today permitted an appeal against last year’s court ruling that care charities did not need to pay up to £400m back pay to sleep-in care workers.

Last year, 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.

But in August the trade union Unison applied to appeal the Court of Appeal’s decision, and the Supreme Court has now allowed that appeal to go ahead.

The Court of Appeal ruling said that sleep-in care workers were not necessarily entitled to the minimum wage for hours they spent asleep at the homes of patients.

The ruling also dismissed back-pay claims against care charities that had followed previous government advice on the matter.

Mencap estimated that the original tribunal ruling would have cost it £20m and the wider care sector £400m if it had not been challenged.

Jan Tregelles, chief executive of Mencap, said the Supreme Court’s decision "plunges the care sector back into uncertainty" and called for government to legislate on the issue.

Previous government guidance on the issue, which was published in November after the Court of Appeal’s decision, had been criticised as insufficient.

"For us, this was not about what we currently pay our dedicated support workers for sleep-ins – we pay national living wage rates and have no plans to stop," Tregelles said.

"We did not want to bring this case, but had to because the prospect of having to make large unfunded back payments threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers."

She said that the government should provide additional funding for the social care sector and ensure carers were paid properly.

Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group, said: "The long-running uncertainty about payments and funding for sleep-in work has created huge uncertainty in social care for many years.

"We are calling on government to consult widely with workers, employers, commissioners and other stakeholders and clarify what hard-working staff are entitled to, and precisely how it and commissioners will fund essential overnight support."

But Unison welcomed the news and said that care workers should not be expected to "survive on a pittance" for their work.

Dave Prentis, general secretary of Unison, said: "This is extremely good news. Last year’s judgment has meant uncertainty for employers and care staff alike. Now there’s the chance to clarify the law once and for all.

"Care employees are working on sleep-in shifts, so this time should be counted as working time. They aren’t free to come and go as they please and, because they’re often the sole member of staff, they’re likely to be on their feet for much of the night."

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