Carers who sleep in are not entitled to the national minimum wage for the full duration of their shift, the Supreme Court ruled last week. Employers in the care sector breathed a sigh of relief following the landmark judgment, which finally put to rest concerns that they could have to pay back millions of pounds in wage arrears.
Two cases were at the heart of this legal battle, that of Royal Mencap Society v Tomlinson-Blake and John Shannon v Rampersad. In both cases, sleep-in care workers brought a legal claim against their employer due to their belief that they should be paid the National Minimum Wage (NMW) for sleep-in night shifts, where they were obliged to be on call during the night and intervene if required.
In Ms Tomlinson-Blake’s case, she was required to work occasional sleep-in shifts while caring for two autistic adults. She was required to keep a ‘listening ear’ out and intervene if necessary. Similarly, Mr Shannon undertook sleep-in shifts at a residential care home, living in a studio flat nearby so that he could be on call if the night carer needed assistance.
Both Ms Tomlinson-Blake and Mr Shannon were allowed to sleep when they were not needed. Both claims were rejected at the Court of Appeal (Ms Tomlinson’s claim was upheld at employment tribunal but later rejected), which is how the cases ended up before the UK’s highest appeal court.
A flat rate for sleep-in work
Both claimants received a flat rate for sleep-in shifts, based on recommendations from the Low Pay Commission (LPC) when the government originally formulated the NMW rules.
The LPC said that instead of receiving pay for hours spent asleep, sleep-in workers should receive a night shift allowance – with the exception of any hours spent awake for the purposes of carrying out caring duties.
Speaking after the judgment, Ms Tomlinson-Blake stated: “Sleep-in shifts aren’t just about 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.”
The case was heard by the Supreme Court in February last year, and last week’s judgment upheld the LPC’s recommendations, giving care providers the reassurance that their approach to pay for sleep-in shifts is now backed by legal precedent.
The ruling was also based on the fact that Ms Tomlinson-Blake’s intervention was only required six times in 16 months, while Mr Shannon was also rarely asked to assist. The verdict was met with jubilation by care providers, who faced paying out years’ worth of wages – which could have brought many businesses to the edge of ruin.
In contrast, trade unions and other bodies representing care workers have reacted with outrage. General Secretary of the Unison trade union, 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.”
Skilled employment lawyers
While the ruling has given care home providers legal certainty on this specific point, it gives rise to other issues. For example, care providers who are currently paying the NMW for sleep-in shifts may feel entitled to stop, potentially damaging employee relations and giving rise to legal claims.
Our expert employment lawyers are on hand to assist employers in effectively managing employee pay issues, with a focus on settling out of court for the minimum damage to your business and reputation. To get in touch, please call 0344 967 2505 or email firstname.lastname@example.org.