Sleep-ins and the minimum wage

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Sleep-ins and the minimum wage

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 overturned the decision of a 2016 employment tribunal and a 2017 employment appeal tribunal. It ruled that the minimum wage does not apply to sleep-in shifts unless the worker is required to be awake for the purposes of working.

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.

Lord Justice Nicholas Underhill said that “sleepers-in are to be characterised for the purpose of the regulations as available for work rather than actually working”. Across the UK, thousands of care staff work sleep-in shifts looking after vulnerable adults and children, many with significant, challenging needs.

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

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.

But in August, Unison appealed the ruling and on the 14th February the Supreme Court allowed that appeal to go ahead. This decision could see care providers forced to pay an estimated £400 million in back pay allegedly owed to care workers deemed to be underpaid for overnight shifts. Several providers have warned that they face insolvency if forced to fund the areas.

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

This decision to allow the appeal will lengthen the period without government clarification on the issue and there is a worry that care providers may cut pay rates.

The date for the Supreme Court hearing is yet to be announced, but it understood that it won’t be until October 2019 at the earliest.

For more information, please get in touch with Claire and Rebecca in our employment team.

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