Care workers who ‘sleep-in’ not entitled to national minimum wage

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Care workers who sleep at service users’ homes are not entitled to the national minimum wage for the hours they are not carrying out work activities, the Supreme Court has ruled – a landmark decision that is set to have ramifications for jobs where workers are required to sleep at their place of work.

The Supreme Court has handed down its judgment in two cases it looked at side-by-side: Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad.

It found that a worker is only entitled to the national minimum wage for the hours they are awake and working and the time a worker is required to sleep on site or nearby doesn’t count towards minimum wage calculations.

This is the final ruling in this area, and the claimants in the two cases have no further route of appeal.

In 2018 the Court of Appeal found that care worker Ms Tomlinson-Blake, who was employed by Mencap, was only “available for work” when she was sleeping in a service users’ home as part of the 24-hour support provided to them, and was therefore not entitled to the NMW.

She was paid a flat rate of £29.05 for a sleep-in shift. She had her own room and could sleep during the shift, but was required to keep “a listening ear” during the night and provide support where needed.

The lower courts had found that Tomlinson-Blake had been working throughout her sleep-in shift and should have been entitled to the NMW for the entire shift. However, the Court of Appeal ruled that she was only entitled to the NMW for the time she was actually carrying out her duties – such as helping a patient or doing other work – and not when she was sleeping or resting.

The Supreme Court agreed with the Court of Appeal’s ruling and dismissed Tomlinson-Blake’s case.

In Shannon v Rampersad, Mr Shannon was a care worker who lived in a studio in an elderly person’s home. He occasionally needed to respond during the night when the night care worker needed assistance. He was paid a salary and received an allowance of £50 per week to live in the person’s home. He claimed he should have been paid the NMW for the time he spent working at night.

The Supreme Court said there is a working from home exception in the NMW regulations, which applied in Shannon’s case.

Its decision in both cases centred around recommendations the Low Pay Commission had made to the government when formulating the NMW regulations. The LPC said that sleep-in workers should not receive pay for every hour spent sleeping, but should receive an allowance for a night shift unless they are awake for the purposes of carrying out work activities.

Relief

Richard Freedman, an employment lawyer at Stephenson Harwood, said many care providers would be relieved by the decision.

“They are guaranteed to escape the financial toll of significant extra costs and back-pay liabilities, which it was predicted would have forced many employers in the sector into insolvency,” he said.

“No longer will care business face claims that they underpaid staff, and there will be respite from similar ‘copycat’ claims, currently in the legal system, which are now likely to fall away.

“But while there will be celebrations today, many businesses in the sector face the future reality of turbulent employee relations with disgruntled staff; staff who had been pinning their hopes on the possibility of additional pay going forward, as well as significant back pay.”

No longer will care business face claims that they underpaid staff, and there will be respite from similar ‘copycat’ claims, currently in the legal system, which are now likely to fall away” – Richard Freedman, Stephenson Harwood

Fair treatment

Speaking after the judgment was handed down, claimant Clare Tomlinson-Blake said: “This case was never about the 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. The sound of a cough in the night could mean someone’s in danger.

“It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too.”

Christina McAnea, general secretary of the Unison union, said: “No one is a winner from today’s judgment. Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance.”

Confirmation

Care providers that had been paying a fixed rate for sleep-in shifts will be relieved that their approach has been confirmed as legally sound, said Matt McDonald of law firm Shakespeare Martineau.

“If the Supreme Court’s decision had gone the other way, the bills facing care providers for historic underpayments would have been substantial and, in some cases, devastating,” he said.

Siobhan Fitzgerald, partner law firm at TLT, said care providers should still ensure they review pay for sleep-in shifts to remain competitive. “From an administrative point of view, employers will need to ensure that systems are accurately recording time spent working during sleep-in shifts, so that workers’ pay does not fall below NMW levels. Failure to accurately record and pay NMW can not only lead to claims for back-pay, but also liability for fines of up to £20,000 per worker,” she said.

From an administrative point of view, employers will need to ensure that systems are accurately recording time spent working during sleep-in shifts, so that workers’ pay does not fall below NMW levels” – Siobhan Fitzgerald, TLT

However, Trowers & Hamlins head of employment Emma Burrows said some of care providers’ questions remained unanswered.

“While the legal certainty surrounding sleep-in payments will be welcomed by those operating in the care sector it still leaves some difficult issues to consider: Will commissioners currently paying for sleep-ins continue to do so? Should care providers who have paying for sleep ins at the NMW now stop? This may give rise to employee relations problems and employment tribunal claims,” she said.

Matthew Wort, a partner at Anthony Collins Solicitors, believed that a regulated minimum rate for time spent sleeping should be set.

“The rate could be decided by the Low Pay Commission to make it fair for care providers and employees. A more effective alternative would be establishing a national pay framework for the social care sector – providing clarity on what a care worker should be paid in all settings,” he said. “The disparity in pay between social care and healthcare also needs to end, with social care no longer being the poor relation.”

Delivering the judgment this morning, Lady Arden said that legacy decisions in this area should be overruled – in particular British Nursing v Inland Revenue, from 2002, should no longer be regarded as authoritative. This is because the Court of Appeal could not properly have concluded that the employees were working for the whole of their shifts, and that it is unnecessary to consider the treatment of particular activities within that period.

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15 Responses to Care workers who ‘sleep-in’ not entitled to national minimum wage

  1. Avatar
    Angus 19 Mar 2021 at 11:17 am #

    It was all but inevitable that this would be the outcome.

    Once matters of this nature reach the Supreme Court, you have Oxbridge educated Lady Muck or Lord Snooty being asked to rule on something that involves a grasp of the realities of living in the real world, something utterly impossible for them. I know the argument is that the ruling is the decisive word on how NMW law should be interpreted but the lack of comment on whether or not this is fair and the steps that should come next is as lamentable as it is predictable.

    It’s a great day for a lot of greedy profiteering providers though, not because of the well regurgitated lines about historical liabilities, but because many have hedged their bets. When provided with sufficient funding to pay at least NMW to staff for all hours worked, they instead gave their staff a slight uplift in their “fixed sleep-in rate” and squirreled the rest into accounts in the hopes that it would eventually be converted into nice dividends for their directors and shareholders. Today is a great day for them, they’re going to get a nice payday on the back of their employees being told the law won’t even permit them a fair one.

    Shameful, rotten and utterly predictable.

    • Avatar
      MARK DAVIS 20 Mar 2021 at 1:42 pm #

      Totally agree. Chief executive, Edel Harris is paid £170,000.00 per annum and blames the government for lack of funding to pay her staff!

  2. Avatar
    Jon 19 Mar 2021 at 1:31 pm #

    After 10 years of working sleepins I left my last job and moved departments (I work for the NHS) I could no longer cope with feeling so tried and at times ill after working what were 24h shifts! I think the time has come that on a set date all staff that do sleepins should refuse to work them unless they are payed a rate agreed to be fair by them and the employer! This would show the establement that this judgement is “Shameful, rotten, and utterly predictable”, but staff can still wield the knife and demonstrate that in 2021/post covid 19 that these shift and the poverty pay for them is a thing of the past!!! I can see that recruitment and staff moral is now bellow the floor, and this will do nothing for those in need of care. sadly I await the implosion as it gets near by the day, unless something is done and fast. Don’t hedge your bets on the social care reforms fixing things, profit is king, the rich will only get richer, until the house falls down!

    • Avatar
      Claire 19 Mar 2021 at 10:35 pm #

      Yes only way forward would seem to be a united refusal to work . No doubt though the majority of care workers ‘care ‘ too much about the people they care for to do this. Having worked in education for 25 years I couldn’t believe it when I became a care worker and found out I’d only get paid £30 for a sleep in shift. I rarely ‘slept’ on one of these shifts as you are constantly aware of the clients and that you are responsible for their well being.

  3. Avatar
    Me 19 Mar 2021 at 6:04 pm #

    So Forces, Police and Fire Service get paid to sleep on the job while Carers don’t, one word, discrimination. It basically all boils down to the £400m in back pay and the Supreme Court knows this. Just shows what’s more important.

  4. Avatar
    Notty 19 Mar 2021 at 7:01 pm #

    There is another side to this, and that is affordability for the client. My wife has a small care business and was fined by HMRC for not paying MW to 2 sleeping staff. She was charging the clients family £58 per night and paying the staff £50 per night, barely covering her overheads. She had to retrospectively pay the carers minimum wage and pay a £7000 fine. This could have put her company through at the time as it was new and growing.
    The result was that the clients family were no longer able to afford the service and had to take care of the duties themselves. Surely if it suits the career to get their sleep away from home then why not? I’d certainly opt for a job on a lesser rate if it means I could sleep and the rest of the day be mine.

    • Avatar
      Jonathan Ellis 24 Mar 2021 at 10:53 am #

      “Surely if it suits the career to get their sleep away from home then why not? I’d certainly opt for a job on a lesser rate if it means I could sleep and the rest of the day be mine.”

      You obviously have no experience of what is a “sleepin shift” is!

      Let me explain, try sleeping in bed often in a the smallest room / cupboard in the house / unit / flat, surrounded by all the parfinala of a working environment. Often the client group are noisy / vocal throughout the night. They will often be up and wandering and at risk of falls so you can not just relax. In my line of work we also had epilepsy to contend with, had monitors in the bed and if the alarm when off we would often then have to admisters rescue medication, to stop that person from DYING!!! You can not just leave and go and get some food or if there is a family emergency go home, you often had also been in work for more than 12 hours previously. On your feet not at a desk! You had medication todo again risk of death and serious harm if you got it wrong but you have to do it completely exhausted, is that safe? This is just a small snapshot of what they are and this is classed as “NOT WORKING” worth £30 and you could still be hauled thought the courts for you actions lose you job CRB never work again in care, even go to prison, what a complete insulting joke!

  5. Avatar
    ELKE 19 Mar 2021 at 8:24 pm #

    I wonder how much more the rich judges earn compared to a careworker . Disgusting outcome. There is a reason social care is in crisis and people don’t want to pursue this career.

  6. Avatar
    David Morris-Hind 20 Mar 2021 at 11:22 am #

    It is not just care companies who have acted disgracefully. Let’s not forget that most local authorities have been wilfully underfunding care providers for years. My local authority Bury has been particularly shoddy.
    How many days will it be before the first care company that has been paying nmw suddenly reverts back to the previous insultingly low levels? Worse still how soon will it be before a care company tries to reclaim what it has already paid out to it’s staff?
    I have worked in care for over 8 years now, on a few pence above nmw, and if I have to take a cut in pay I will reuse to do the sleep-in shifts and be looking for another job. My previous sleep-in rate was £27 a shift.

  7. Avatar
    Jane Porter 21 Mar 2021 at 11:09 am #

    This ruling will mean a lack of care workers as you cannot survive on the wages without the sleep payment. I never sleep properly on shift as always keeping ear out for my service user. Yet again care staff are being under valued and not recognised for the job that they do. Makes my blood boil.

  8. Avatar
    Grant Stendall 23 Mar 2021 at 5:39 pm #

    There have been numerous studies about the damage to health caused by lack of sleep.
    The judges, commissioners and employers continue to disregard the efforts of sleep in staff. I support 5 extremely vulnerable adults with health conditions and severe learning disabilities starting work at 10 am and leaving at 10 am the next day. Epilepsy alarms door alarms tenants out of bed in the night. Because they will not fund paid night staff due to cost.
    Shameful isn’t it.
    If sleep in duty is not classed as working surely we cannot be contractually required to do this under emploment law.

    • Avatar
      jon 24 Mar 2021 at 3:14 pm #

      Or do as I did, there is plenty of care work around (the bonus of poverty wages / market forces) So even though in my 30 plus years of work in social care, 16 years in learning Disability where I am happiest. I left and got another care job same pay, but no sleepin shifts,it is closer to home so the money I lost from anti socal pay I gain in petrol money / travel time! If enough staff do the same It will force Central government. local government and care providers to take notice! No more are staff willing to work under these conditions, yes the law says its not working time, so these profiteering race to bottom care provides who aggressively seek to offer the lowest bid, exploit that loophole in a bid to win the tender. and our commissioning authorities (local government) who have chosen to look the other way ask no questions just save the cash!! It needs us the workers to say no more and vote with our feet, social care is on the edge so it will not take many to topple this corrupt and exploitive practise!

    • Avatar
      Sir 24 Mar 2021 at 4:23 pm #

      If lack of sleep causes damage to health then no amount of pay will change that. The answer is a waking night service, rather than NMW for sleep-ins.

  9. Avatar
    Sir 24 Mar 2021 at 4:20 pm #

    Wish I got paid to sleep.

  10. Avatar
    A Tasker 24 Mar 2021 at 10:32 pm #

    Disgusting they will never understand what it’s like doing a sleep shift people shouting then you have to get up to make sure they are safe some got bed sensors if they get up you have to check them aswell so you are not sleeping it can be quite disturbing you can finished that shift at 10am go home shattered unless these people do this job they will never know what’s its like to be a carer.

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