Supreme Court rules that sleep-in care workers are only entitled to minimum wage when awake

by | Mar 23, 2021 | Blog

On Friday 19 March, the Supreme Court ruled that sleep-in care workers are only entitled to minimum wage when awake. The decision that workers can only receive payment when they are ‘actively helping a client’ ends a four-year legal battle that involved two care workers and the learning disability charity Mencap. This ruling ends the immediate possibility of a £400m back-pay bill potentially jeopardising the care of vulnerable people but means thousands of care support workers – already on low incomes – face substantial cuts in earnings.

The original ruling in 2017 saw many sleep-in care workers receive an hourly rate rather than a flat rate, in effect doubling the cost of a shift to around £70. With the recent Supreme Court ruling, it is speculated that some providers will revert to the original £35 flat rate.

The ruling was welcomed by Mencap, which said it would continue to pay its workers the enhanced hourly rate. It did however urge the Government to change the law on sleep-in payments as it is a “statutory care service” which should be funded by local authorities.

Edel Harris, Mencap’s chief executive, said: “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.”

The Government are aware of the Supreme Court decision and have acknowledged the “vital role” care workers perform and how tirelessly they’ve worked throughout the pandemic to support the most vulnerable, but the decision still stands.

Unison have called the ruling a “huge blow” for care workers stating that “no-one is a winner from the judgement”. Christina McAnea the Union’s General Secretary states “everyone loses until the Government intervenes and mends a broke system that relies on paying skilled staff a pittance.”

One of the care workers who brought the case forward, Clare Tomlinson-Blake went on to say that “this case was never about money. It was about the principle of treating staff fairly. Sleep-in shifts aren’t about just being on call – it’s work. Staff are constantly on guard to protect the most vulnerable in society.”

Before the ruling in 2017, care workers on a sleep-in shift were paid a flat rate and only received an hourly rate for the hours they were awake for the purposes of working. This changed after guidance said care workers should be paid the national minimum wage for all the hours they were at work, regardless of whether they were asleep. The original employment tribunal of 2017 confirmed this and doubled the cost per shift to £70. At the same time, it was said that providers should be liable for six years of back-pay to carers. This led to increasing fears of care provider bankruptcy.

A year later the court appeal was reversed, and a back-pay decision made that ruled in favour of flat-rate payments, meaning sleep-in care workers could receive the full rate only for those hours during which they were awake and assisting the client.

After a lot of back and forth, it is a welcomed end to the proceedings.

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