Care workers are not entitled to the minimum wage for all the time they are on a ‘sleep-in’ shift, the Court of Appeal has held in a decision of major significance to the care sector.
In Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 1641, the charity Mencap successfully argued against an Employment Appeal Tribunal ruling last April to the effect that overnight care workers could claim six years’ backpay at national minimum wage (NMW) level.
James Davies, partner at Simons Muirhead & Burton, who acted for Mencap, said: ‘The Court of Appeal in Mencap held that on a straightforward reading of the Regulations, workers on sleep-in shifts were only entitled to have their hours counted for NMW purposes when they were (and were required to be) awake for the purpose of performing some specific activity.
‘This judgment will have an enormous impact on the care sector. The potential historic liability, through a gap in funding—estimated in the hundreds of millions of pounds across the sector—threatened some providers’ future viability had they been obliged to pay their staff the NMW for the whole of sleep-in shifts at residential homes and care homes.’
However, Dave Prentis, Unison general secretary, said: ‘This judgment is a mistake, but let’s be clear where the fault lies.
‘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. 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.’
