Employers in the care sector have been thrown a lifeline by the Court of Appeal’s latest ruling on sleepover shifts. In a case brought by Mencap and others, it was decided that staff sleeping in at a client’s home were not entitled to be paid the national minimum wage (NMW) for their sleep-in shifts.
The latest development means that the NMW is only payable when such sleep-in staff are awake for the purpose of working. If they are asleep, even if they have to keep a ‘listening ear’ whilst sleeping, then they are only ‘available for work’ – and not actually working.
The judgment, which considered policy issues, overturns a line of staff-friendly cases stating that sleep-in shifts in the care sector amount to ‘working time’ for the purposes of NMW and therefore must paid at the hourly rate.
However it’s important to understand that this ruling was confined to cases where staff work at the client’s own home and not at a care home. The waters remain muddy for care providers, as we explain.
Background to the case
The charity Mencap, which supports 5,500 people with learning disabilities and their families, appealed against an earlier ruling that it was wrong to have paid a support worker, Mrs Tomlinson-Blake, just £29.05 for a nine-hour shift.
Mrs Tomlinson-Blake was employed overnight on a ‘just in case’ basis, the charity claimed, caring for adults with autism. Mencap said her role was to provide safety and reassurance and she was rarely woken.
Although she was only woken up six times in 16 months to help someone living in the house, it was initially held that she should get the full hourly NMW – currently £7.50 for those over 25 – because she had to ‘keep a listening ear’ and was not allowed to leave the premises.
Mencap and Care England – the representative body for social care providers – went to the Court of Appeal to challenge this ruling. And the Court has indeed now concluded that it should not stand.
With the prospect of having to pay a total £400m in back pay now lifted – and the bankruptcy of care firms and charities averted as a result – it would seem that a crisis in the care sector may have been avoided.
As a result of earlier rulings that sleep-in shifts were subject to the NMW, things have already changed in the care provider sector. This includes the Government altering its guidance to state that NMW should be paid for sleep-in shifts, with financial penalties for providers who underpaid. So what is likely to happen next?
Will there be an appeal?
It’s understood that the Court of Appeal refused permission to appeal. However Unison, one of the UK’s largest trade unions with 1.3 million members, is considering pursuing a challenge to the Supreme Court.
What’s happening with the Social Care Compliance Scheme?
This HMRC scheme was set up last year to try to ensure that companies and charities providing care services to the elderly and vulnerable settled the back-pay owed to staff for sleep-in shifts that hadn’t been paid at NMW. HMRC has not yet responded to the judgment and the future of SCCS is not clear.
What will happen to rates of pay now?
Many care providers took the decision prior to the Supreme Court ruling to increase pay for sleep-in shifts anyway. It’s not thought likely they’ll go back on this. But on the flip side, providers who didn’t increase sleep-in pay rates aren’t going to up them now, potentially putting them at a competitive disadvantage when trying to recruit and keep staff.
Considerations for care sector employers
Many expert commentators are now calling for the Government to bring in legislation to clarify the position.
In the meantime we advise caution on the part of care providers. All cases are fact-specific, and the latest ruling did not concern cases where sleep-in staff were required as a statutory requirement – it does not mean that all sleep-in shifts are exempt from NMW.
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