Sleep-in shift ruling may impact other industries

The Supreme Court ruled that social care staff are not entitled to the national minimum wage for every hour they work​, including sleep-in shifts.

Amelia Goodwin, an associate at law firm Charles Russell Speechlys, has warned the ruling will affect employers in other sectors who engage sleep-in workers at their premises, such as security staff or those providing emergency IT cover.

‘Employers, particularly those in the social care sector, will be breathing a sigh of relief following the Supreme Court’s ruling today.

‘When interpreting the national minimum wage legislation, the court’s decision took into account the Low Pay Commission recommendation that sleep-in workers are only entitled to the national minimum wage, for hours when they are actually working.

‘Case law in this area has historically been inconsistent, and so whilst the Court’s decision is specific to these two cases today, it will be helpful for other employers going forward.

‘The question of whether employers will have to pay sleep-in workers for their entire shifts, will come down to whether the main purpose of the arrangement is for them to actually work, or if it is to sleep but be available for work.

‘This decision means the ongoing support for vulnerable people will be safeguarded and will also contribute to strengthening the sustainability of the sector.

‘The ruling will also affect employers in other sectors too, who engage sleep-in workers at their premises, such as security staff or those providing emergency IT cover. However, it is likely that low paid workers in the care sector will find this ruling a disappointing result.

‘In many ways, this decision may be seen as at odds with the recent Supreme Court decision in the Uber case which focused firmly on the protection of the worker.’

The ruling marks the end of a long-running UNISON-backed case taken on behalf of care worker Clare Tomlinson-Blake against her now former employer Mencap.

Ms Tomlinson-Blake, who provided 24-hour support to two men in their own home, argued that every hour of her night shifts should count as working time. She was required to keep ‘a listening ear out’, provide support where needed and respond to emergencies.

An employment tribunal initially found in her favour, but the Court of Appeal overturned the decision in July 2018. Then in February 2019, the Supreme Court granted Ms Tomlinson-Blake permission to appeal and UNISON continued to support this case.

Speaking after the judgment, 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.’

The union said a national social care system is needed now to transform the country’s broken care service where skilled staff are undervalued and underpaid, ​and vacancy rates are high.

UNISON general secretary Christina McAnea said a ​well-funded service that mirrors the NHS would ensure workers are paid fairly, help fill job vacancies, and ensure those who depend on care receive quality support.

‘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.

‘This dire situation was ignored by the government for years before Covid, and again in the recent budget.

​’The judgment shows ministers can’t disregard the desperate need for major reform a moment longer. That includes a ​well-resourced national care service ​that ensures staff are paid fairly to help resolve soaring job vacancies.

‘The longer the delay, the greater the betrayal of the most vulnerable in society and the dedicated workers who look after them.’

Edel Harris, chief executive of the Royal Mencap Society, is calling on the government to reform the ‘outdated and unfair’ legislation around sleep-in payments.

‘Support workers within Mencap and across the sector do an exceptional job. They are dedicated in their care for people with a learning disability and should be paid more.

‘They are care workers on the coronavirus front line and deserve better recognition in all forms. The Supreme Court in its judgment rightly recognises this. But we understand that many hard-working care workers will be disappointed by its ruling.

‘Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400 million.

‘Sleep-ins are a statutory care service which should be funded by local authorities, and ultimately the government. It is no exaggeration to say that if the ruling had been different, it would have severely impacted a sector that is already underfunded and stretched to breaking point.

‘Some providers would have gone bust and, ultimately, the people who rely on care would have suffered.

‘We believe that the legislation covering sleep-in payments is out of date and unfair and we call on the government to reform it.

‘More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better. It is disappointing that there is still no plan for social care reform.

‘The decision means that we can continue our important work which includes fighting for the rights of people with a learning disability, giving information and advice and promoting inclusion, as well as supporting people to live brilliant lives.

‘Until there is a more sustainable solution from government, we plan to continue to pay top-ups for sleep-ins, as we have done since 2017, and will urge local authorities to continue to cover this in their contracts.’

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