Supreme Court sleep-in appeal plunges care sector into uncertainty

The Supreme Court has granted permission for an appeal in the legal case considering whether or not care workers who work “sleep-in” shifts are entitled to the national minimum wage.

In July 2018, the Court of Appeal ruled that care workers who sleep overnight at a client’s home are not entitled to the minimum wage while they are sleeping.

In its judgment of two similar cases in the care sector – Royal Mencap Society v Claire Tomlinson-Blake and John Shannon v Jaikisham and Prithee Rampersad – the appeal judges found that employees who stay at a disabled, elderly or vulnerable person’s house overnight are only entitled to the minimum wage while they are carrying out their duties – not for the full duration of their sleep-in shift.

Jan Tregelles, chief executive of Mencap, said: “This plunges the care sector back into uncertainty and underlines the need for the government to legislate so the position is clear.

“For us, this was not about what we currently pay our dedicated support workers for sleep-ins – we pay national living wage rates and have no plans to stop. We did not want to bring this case, but had to because the prospect of having to make large unfunded back payments threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.

“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 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.”

Dave Prentis, general secretary of Unison, which is backing Tomlinson-Blake’s case, said that last year’s judgment had meant uncertainty for employers and care staff alike.

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“Now there’s the chance to clarify the law once and for all,” he said. “Across the UK, thousands of care staff work sleep-in shifts looking after vulnerable adults and children, many with significant, challenging needs. As a society we should be celebrating the valuable job care workers do, not expecting them to survive on a pittance.”

In last summer’s judgment, 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.

“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.”

But Prentis said today that care workers are not free to come and go as they please when they’re sleeping in and, as often the sole member of staff, they are likely to be on their feet for much of the night.

“Any local authorities or care providers seeking to take advantage of the uncertainty of the current situation by cutting pay rates now are acting irresponsibly. Sleep-in shifts should continue to be treated as working time, and paid accordingly.”

More than 600 care support workers employed by the Alternative Futures Group have recently voted to take strike action over cuts to their pay for sleep-in shifts. Unison says they are facing a significant reduction in their wages and stand to lose as much as £15 for each sleep-in shift and more than £2,000 a year.

6 Responses to Supreme Court sleep-in appeal plunges care sector into uncertainty

  1. Avatar
    Tracy 14 Feb 2019 at 5:33 pm #

    It’s about time society valued carers and paid them for all their hours. Firefighters are provided with beds for night shifts and get paid for sleeping. Yes it is important to have cover in case of a fire 24/7 but it is equally important that our elderly and most vulnerable people in society have the care and support they desperately need. What is there to argue about?

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    Elsie Mayhew 13 Feb 2020 at 11:29 am #

    Absolutely not. If you are actively caring and working throughout the night, then yes of course. You have made the decision to take a job in the care industry that involves night work. Wake night is of course paid, but to get paid for just sleeping or watching TV (whatever you chose to do with your time) is not appropriate. A flat rate is tenable. If this is agreed in the carers favour, they will not have any jobs to go back to. It will plunge social care into a dreadful situation with care homes closing everywhere. I think that the staff do not understand that the cuts social services have made to payments, means that the money will not be available for this undertaking. Flat rate is you are not actively working, paid nights if you are wake night is the only way forward. I wish I could get a job that pays me to sleep at night!!

    • Avatar
      Elsie mayhew 23 Mar 2020 at 12:21 pm #

      that sleep is often after a 12/15 hour shift, is not in my own bed, next to my wife. is another night that she spends alone, creates tension anjd leaves her to care for our two young children, get them up and ready for school. why should this time not be paid at MINIMUM WAGE? foolish

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      Margaret Doherty 1 Jul 2020 at 2:28 am #

      Did you know companies are forcing staff to stay in unfit conditions after a full days work and can’t watch television as would wake service user can’t phone friends or family and have no private washing facilities you should try doing my job for £23.00 for 8 hours a night before you comment on conditions you know nothing about

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    Jan Sandland 14 Feb 2020 at 6:45 pm #

    My company pays £65 per night for sleep in duties. We support customers with learning disabilities. Although staff can be woken up this is far and few between and sleep most nights. If it is identified they are woken up regular then we would seek to gain further funds from local authority to employ a waking night. If a staff member is disturbed then we would send them home early to rest. Most cases highlight the worse case scenario not any best case scenario where you are paid to sleep. I fear how many care homes will close if companies have to pay years back pay and who will be the loser.?

    • Avatar
      barry 17 Feb 2020 at 7:25 pm #

      I worked solidly for 2 years getting only £25 for a sleep in and my company owes me 121 sleep in difference it is a lot of money they owe me and have waited a few years now glad it is over and I can get what im entiltled to .

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