Care provider wins Court of Appeal battle over sleep-in shifts and minimum wage

The National Minimum Wage (NMW) does not apply to sleep-in shifts unless the worker is awake for the purpose of working, the Court of Appeal has reportedly ruled.

It has been estimated that if Mencap, the appellant, had lost the case, it would have cost the care sector an estimated £400m in back-dated pay and £200m a year from 2020.

The Unison union described the ruling as a “huge mistake” and said it was considering taking the case to the Supreme Court.

The judgment, which is not yet available, is understood to have said: “For the reasons which I have given I believe that sleepers-in, in the sense explained at para. 6 above, are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 32, rather than actually working, within the meaning of regulation 30, and so fall within the terms of the sleep-in exception in regulation 32 (2); and we are not bound by authority to come to any different conclusion.

“The result is that the only time that counts for NWM purposes is time when the worker is required to be awake for the purposes of working.”

Derek Lewis, Chair of the Royal Mencap Society, said: “The Court of Appeal has today handed down its judgement in two cases, one of which involves Royal Mencap. These are representative of many similar cases in the care sector. The Court’s decision has removed the uncertainty about how the law on the National Living Wage applies to sleep-ins. The prospect of having to make large unfunded back payments had threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.

“Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed. We did not want to bring this case. We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and Government enforcement action, including serious damage to Mencap’s work in supporting people with learning disabilities.”

Lewis said, however, that dedicated care workers deserved a better deal. “They work hard and support some of the most vulnerable people in society, but many are among the lowest paid. We and many other providers have been paying for sleep-ins at a higher rate for over a year now, and we intend to continue despite the Court’s decision.”

He added: “We now call on Government to fulfil its responsibilities by legislating so that all carers are entitled to this, and their employers are funded accordingly. We also call on Government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.” 

Responding to the ruling, Cllr Izzi Seccombe, Chairman of the Local Government Association’s Community Wellbeing Board, said: “This ruling will come as a relief to care providers and councils because it removes considerable uncertainty and a potential considerable unfunded burden on top of already significant financial pressures on the adult social care sector.

“We now need urgent clarity on all enforcement action for back payments when the National Minimum Wage wasn’t paid to ensure that no provider will face further action.”

Cllr Seccombe added: “As we said in our submission to the court, we strongly support care workers being paid a fair wage for their valued work, but if this appeal was upheld it would have increased the risk of a sinkhole in adult social care.

“However, today’s decision does little to ease the financial crisis facing social care. There is a £3.5bn funding gap facing adult social care by 2025. This gap needs to be fully funded by government so that providers can plan with more confidence to ensure all people can receive reliable, high quality, personal care and support when and where they need it.”

Unison said the Court of Appeal ruling was wrong and “at odds with legal precedents and a common sense understanding of what counts as work”.

The union had brought the initial case to an employment tribunal on behalf of care worker Claire Tomlinson-Blake. The Employment Appeal Tribunal found in her favour in April 2017.

Unison general secretary Dave Prentis said: “This judgment is a mistake, but let’s be clear where the fault lies. The blame for this sorry state of affairs that’s hitting some of the country’s lowest paid workers must be laid at the government’s door.

“Ministers are so consumed by Brexit that they’re ignoring huge problems around them. Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly."

Prentis added: “Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people. With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can.

“That’s why it’s such a disgrace that workers have been paid a pittance for sleep-ins – with some getting just £30 for a ten-hour shift.”