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.

13 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 .

    • Rachel 5 Sep 2018 at 8:51 am #

      We as a company have decided to leave things as they are and pay NMW for sleeping in, we value our staff and felt that this ruling was correct, however what did concern us and would have put us, as a small company out of business, was the back pay ruling for 6 years.
      That was unfair to employers who were not funded by local authorites to do so and would have thus crippled the sector and Unison got that badly wrong.
      Until the job you do is valued I am afraid little will change.

  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.

  4. Dorothy 30 Jul 2018 at 4:48 pm #

    In the long-term there will be staff changing there career paths due the sleeping shifts. Many of us are unable to sleep while taking duty of care for others. Sometimes there is no opportunity to sleep but you can’t leave work earlier after working 24hrs. Many staff work reduced hours because the sleeping shifts leave them worn out. It’s diluted the standard of care we can deliver due to being tired out constantly. I have to work 7 a month, granted there all broken up but that’s a week am away from home for 210. I have reduced my hours as much as possible so that I can live to 30 a week. It’s not sustainable & it’s leading to burn out & massive stress levels ….

  5. Lynn Sills 6 Aug 2018 at 1:44 pm #

    I think it’s a bad it’s like we as support/care workers are not valued and there will be a lot of staff looking for better paid jobs I for one am now considering changing my job shame it’s the clients we look after that are going to suffer

  6. Nigel 15 Aug 2018 at 6:32 am #

    This is a ridiculous decisiin, whether I’m sleeping or not,I cannot leave the premises I sleep in to pop of home, or to the shop. I have 20 minutes until paid break each day. Do I get a break from the service user no I dont, however I still have 20 minutes taken out of my wages each day. Do I get weekends off, no one in 6, work 6 days to get 2 days off. Do I feel appreciated for doing this no, I am actively seeking other employment carers are not well paid and spoken to like crap or assaulted daily.

  7. Richard 19 Aug 2018 at 7:46 pm #

    If they think I’m ding sleep ins for £30 after a 14 hour day going non stop then I’m afraid it’s goodbye to care.

  8. Deb 22 Aug 2018 at 12:51 am #

    agree with you all we are paid a pittance so much so im doing over 60 hours a week and 3 or 4 sleep ins i cant leave the building its 15 hour days without a break do you think we are not worth the money our managers will say we are worth way more … so show us and pay us our true worth
    on that note im applying to aldi they are paid alot more than us

  9. mike 5 Oct 2018 at 5:04 pm #

    Having worked as a care worker for many years I don’t believe in the one shoe fits all thinking. Some sleep in workers deserve hourly pay for all the hours there and others do not. If you are sleeping in and get woken more than once a night, every night and at random times so each night you go to sleep you can expect to get up then YES you should be paid for each hour you sleep in.

    But if you work in say a settled children’s home and are only there in case a child gets ill, or goes missing and this happens once a month so the majority of nights you are asleep through the night and then start shift the next day, I think a supplement of £20 – £30 is plenty. Paying someone to sleep at minimum wage rate seems ridiculous to me. Its about what’s fair. If a worker at my place have had to get up to deal with such an issue then they get the supplement and the hours paid back that they were awake.

  10. James 16 Oct 2018 at 10:42 pm #

    A sleep in lasts from 10 pm to 7 am, yet on my current pay slip Mencap have paid me 8 not 9 hours at £7.83 an hour, the NMW. Are they pinching another hour off their carers and hoping we don’t notice? Charity? Ha ha it’s more like a business!

  11. Angela 24 Oct 2018 at 3:14 pm #

    Surely being paid a flat rate for sleep-ins is fundamentally wrong and excludes many people from working in Social Care Sector; people who have to pay for child care or other dependants whilst they’re at work for 24 hours albeit part sleeping.

  12. Bruan mayren 26 Oct 2018 at 7:13 pm #

    I have worked as support and did many sleeps..i left 21/2 years ago ..found out they have paid staff out for sleeps but never contacted me ..contacted mencap the informed me as is been over two years they can not help me ..is there anything i can do they have paid out staff last year im not in a union ..if i got in touch with the firm can they reject my claim

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