Care workers lose ‘sleep-in’ pay legal battle

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

The legal ruling – issued today (19 March) – 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.

In the ruling, the Supreme Court acknowledged that no-one would doubt the importance of care workers who look after those who cannot look after themselves, and that sleep-in staff are among the low paid.

However, the justices said that workers must be paid national minimum wage when they are awake and working, but they do not need to be paid this when they are asleep.

Commenting on the decision, Unison general secretary Christina McAnea 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.

‘Today’s 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 chief executive of the Royal Mencap Society, Edel Harris saidit contested this case because of the ‘devastating unfunded back pay liabilities facing providers across the sector’ estimated at £400m.

‘Sleep-ins are a statutory care service which should be funded by local authorities, and ultimately government. It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which 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‘We believe that the legislation covering sleep-in payments is out of date and unfair and we call on government to reform it.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.’