Supreme Court rules on care workers’ sleep-in pay

Care workers on sleep-in shifts are only entitled to the national minimum wage for the time in which they are required to work, not the time they are asleep, the Supreme Court has ruled.

The Supreme Court upheld recommendations by the Low Pay Commission that sleep-in workers should receive an allowance and not the minimum wage unless they are awake for the purposes of working.

It concluded that the meaning of the sleep-in provisions in existing regulations is that, “if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the national minimum wage calculation for time work or salaried hours work unless the worker is awake for the purpose of working”.

The case was taken by care worker Clare Tomlinson-Blake against her now former employer Mencap. 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.

​UNISON, which backed the case, said it was disappointed in the ruling and will now push for a change in the law so sleep-in shifts count as working time. The union is also urging employers and local councils commissioning care not to cut existing pay rates for already low-paid staff.

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

Kate Palmer from HR experts Peninsula UK said: “Care operators across the country will no doubt breathe a sigh of relief at the Supreme Court’s ruling, especially as the implications for the Court going the other way looked set to be substantial… For care companies, this certainly seems like the end of the story. Not only can they continue to operate as they have been doing and won’t need to make changes to how staff are paid, they now do not face potential claims for failure to provide the national minimum wage and, perhaps most significantly, but this particular case also cannot again be appealed.”

She added: “It remains to be seen what the ongoing implications of this ruling will be, with many operators in the care sector calling on the government to take another look at the law surrounding sleep-in shifts and payment of the national minimum wage. However, until we see a response from the government, employers should take this ruling as definitive.”

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