The Court of Appeal has today (13 July 2018) ruled that carers working ‘sleep-in’ shifts are to be characterised as available to work, rather than actively working, and are therefore not entitled to the national minimum wage.
The judgment refers to Royal Mencap Society v Claire Tomlinson-Blake and John Shannon v Jaikishan and Prithee Rampersad (t/a Clifton House Residential Home), and concerns workers who sleep overnight on premises to care for elderly, disabled or otherwise vulnerable people in their own homes.
In his written judgment, Lord Justice Underhill considers both the particulars of the two cases, and the correct approach to sleep-in cases more generally.
A conclusion on the general issue outlined that rather than actively working, staff on sleep-in shifts were instead classed as ‘available to work’. The national minimum wage is noted to apply only to time when the employee is required to be awake for the purposes of working.
This conclusion then determined the outcomes of the individual Mencap v Tomlinson-Blake and Shannon v Rampersand cases.
Professor Martin Green OBE, chief executive of Care England, said: “We welcome the Appeal Court ruling and hope we can now move forward, without a huge back pay liability hanging over the sector and threatening the ongoing care of thousands, to ensure we focus on getting social care services funded properly for the future.”
James Sage, head of the social care team at law firm Royds Withy King, said: “This Court of Appeal decision reverses an earlier decision of the Employment Appeal Tribunal that found that sleep-in shifts in a care setting were working time for the purposes of national minimum wage laws. It is very welcome news for care providers and was a crucial outcome for the sector. But it is possible that the decision will be appealed to the Supreme Court, which will continue the uncertainty and anxiety felt by the sector. We hope this won’t happen.
“The government, in response to the earlier ruling of the Employment Appeal Tribunal, introduced a Social Care Compliance Scheme for providers to declare their non-compliance to HMRC and repay staff. The government must clarify what will happen to those providers who joined the Scheme, and any HMRC enforcement action must be halted, at least until we know if the decision will be appealed.
“In the interim, care providers need to sit tight and continue contingency planning in case the decision is appealed. The Government must take the opportunity to find a sensible solution to the funding crisis affecting the sector.”
Derek Lewis, chair, Royal Mencap Society, said: “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.
“What is clear though, is that dedicated care workers deserve 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. 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.”