Mon Mar 22 2021
The long running case of whether a sleep-in carer should be entitled to the National Minimum Wage has finally been settled
Last week, an appeal by sleep-in carers to receive the National Minimum Wage when on call was dismissed by the Supreme Court, saving charities over £400m.
The decision over the legal status of sleep-in workers was handed down last week by Lady Arden in the case against NonProfit Mencap over how pay was calculated for carers who slept for part or all their shift.
It had previously been industry standard for a flat rate to be paid for time spent asleep but a Mencap care worker brought a claim, arguing she should be entitled to the National Minimum Wage for the entirety of her shift, irrespective of whether she was asleep or not.
However, in dismissing the case, Arden said the NMW was clearly fixed by the Government following the Low Pay Commission’s consultation so her judgement was in accordance with provisions set out in both the NMW 1999 regulation’s and the 2015 regulation’s.
In her judgment, Arden concluded that the definition of the sleep-in provisions were such that if a worker was permitted to sleep during their shift, only expected to be awake to respond to emergencies, then the hours in question should not be included in NMW calculations for time worked or salaried hours worked, unless the worker was awake and working.
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.
This case has been going backwards and forwards for a long time now, with the Court of Appeal overturning a decision in 2018 of an employment tribunal in 2015 that found Claire Tomlinson-Blake, a care worker for Mencap, was entitled to receive the National Minimum Wage for every hour of a sleep-shift completed… Plus six years of back pay.
Previous to that, charities had typically been paying a flat rate of £35-£45 per sleep-shift, plus an hourly rate for any time spent awake caring for someone.
Another appeal was lodged in 2018, against the Court of Appeals decision by the trade union Unison which received the go ahead from the Supreme Court in 2019 for the case to be re-heard.
It was that backpay claim that had many charities worried though, with estimates of it costing the sector over £400m… £400m it said, it either didn’t have or would have to come from other, vital services. Mencap estimated it would cost them around £20m personally.
The judgment recognises that care workers have been on the coronavirus front line and deserved better recognition in all forms but 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.
In the wake of the ruling Mencap have called on the Government to reform legislation around sleep-in wages to make them fairer, with a review of all social care and more money being put into the system.
Mon Mar 22 2021