Care workers not entitled to minimum wage when sleeping

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Care workers who sleep overnight at a client’s home are not entitled to the national minimum wage while they are sleeping, the Court of Appeal has ruled.

In its consideration of two similar cases in the care sector – Royal Mencap Society v Claire Tomlinson Blake and John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home), the Court of Appeal found employees who stay at a disabled, elderly or vulnerable person’s house overnight are only entitled to the national minimum wage while they are carrying out their duties – not for the full duration of their sleep-in shift.

Charity Mencap, which appealed against decisions made by the employment tribunal and employment appeal tribunal, said the back payments it and other care providers were previously required to make would have threatened to bankrupt many organisations.

The decision also restores the position that existed before the Department for Business, Energy and Industrial Strategy changed the government guidance to state that sleep-in carers must be paid at least the national minimum wage (NMW) throughout their whole shift, even when sleeping.

Lord Justice Nicholas Underhill said: “Sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception.

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 – Dave Prentis, Unison

“The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.”

Harry Abrams, solicitor at Seddons, said the decision now meant there was a clear distinction between “working” and being “available for work”.

“We now have confirmation that it is not sufficient for the worker to be at the care home and ready for work if needed but in fact they need to be awake and working (in the ordinary meaning of the word) to be entitled to NMW and for it to count as working time,” he explained.

“Had the decision once again gone against Mencap, they, along with others, were faced with having to pay back pay for up to six years in breach of contract claims and/or up to two years’ back pay for unlawful deduction from wages claim for their current workers.”

Employers that had started paying staff the national minimum wage for sleep-in shifts might choose to stop the payments now, suggested Emma Burrows of Trowers & Hamlins. However, this might result in increased staff turnover.

She said: “Many employers may seek to recover back pay that they have already paid. Many employers are in the social care compliance scheme [which is run by HMRC], and HMRC’s approach will have to change as a result of this judgment.

“Under the scheme care providers had until 31 March 2019 to make back pay payments, which are conservatively estimated at £400m. There is sense in care providers now withdrawing from the scheme, if it continues.”

However, public services union Unison said the Court of Appeal’s decision was at odds with legal precedents. It is considering lodging an appeal with the Supreme Court.

The union’s general secretary Dave Prentis commented: “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 10-hour shift.”

Derek Lewis, chair of the Royal Mencap Society, acknowledged that care workers were given “false expectations” of an entitlement to back pay and many would feel disappointed about the decision.

3 Responses to Care workers not entitled to minimum wage when sleeping

  1. Maria 15 Jul 2018 at 11:03 am #

    Having read this that’s me now leaving the the care sector its not worth me working 60 + hrs a week to find I’m not even going to be paid for part of my shift as it counts as I may be sleeping and have to prove otherwise ( the company I work for only pay nmw is awake for more than an hour for that hour)
    My shifts on some days starts at 7.45 am and finish at 3.45 pm at one place I have till 4.30 pm to get to the next job which is doing teas, tidy the house doing laundry and putting the person to bed my sleep in then starts at 10 pm but I have to be up by 6 am to dress wash and do breakfast and other tasks for a service user if they wake are restless require help with toileting ,a drink etc then I’m expected to get up and deal with it but as that takes less than an hour under the old guidelines of the company I won’t get paid so by the end of my shift I’m absolutely knackered which ends at about 9 am depending if they are going out, on some occasions I’ve been expected to start a 1 to 1 at 11am till 3pm to then get a night a home and start the same the day after. I may as well work elsewhere earn more money and have more time with my family as sleep ins are also not counted as part of my contracted hours .
    The way it should change is sleep ins are counted as part of your contracted jours you can’t work more than 12 hrs with a service users without 12 hrs off inbetween and nmw should be mandatory as you are away from home working. There should also be the option to opt out of sleep ins in your contract or be limited to no more than one a week .

  2. Pam 17 Jul 2018 at 7:13 pm #

    Hi

    Yes I agree with what you are saying.

    I have worked as a Support Worker for many years and loved every minute.
    I feel badly let down by the Appeal procedure and can’t quite understand how two appeals can be lost and low and behold the third is upheld!
    My working week should be 37 hours, add the sleep ins and it becomes 67 hours, unsocial hour payments no, working every other weekend, Enhanced payment no.
    Feel valued, no
    The usual pattern is 7 days on which works out as an 83 hour week and Two days off, it’s like being on a hamster wheel
    Outsourced from local Gov 6 years ago and things have gone from bad to worse, the new Provider is now saying there will be a restructure and working week will increase from 37 to 39 hours sickness benefit and Annual leave to be reviewed,so effectively a pay cut!
    So it’s goodbye from me, sad to say it’s the Service Users who will suffer and the Scheme will be run on Agency and the poor Service Users will not know who will support them and there will be no consistently of Staff, no one to spot the problems before they turn into another Southern Health catastrophe.

    But hey, who cares if the loyal band of Staff leave to find a less stressful better paid job with no anti social hours.

    So in a nutshelll, a massive exodus of well trained caring Staff who over the years have run the service on goodwill and always gone the extra mile, you reap what you sow!

  3. sam 20 Jul 2018 at 11:46 am #

    I am currently working at a residential children’s care home. on many occasions the children do go to there rooms and settle, however staff do not get a nights sleep due to the door alarms going off everytime a child goes to the toilet. it is staffs job to go and check the child hasn’t left the home when the door alarms go off. this can happen 3 -4 times a night meaning the staff are woken up but as they are not working for an hour they don’t get paid for this. this is why staff should be paid NMW. also my shift are from 8am one morning to 8.30 the next, in that time I am not able to leave so feel like I am still on shift even on the sleep.

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