Court Of Appeal Delivers Judgments On Carer Sleep Cases

The Court of Appeal has ruled that carers who have to sleep at their workplace in case they are needed overnight, will not be paid the National Minimum Wage unless they have to work during that time.

In a case against the Royal Mencap Society, care worker Claire Tomlinson-Blake, received a salary for her full-time job helping vulnerable adults living in their own homes, and sometimes had to work a sleep-in shift between 10pm and 7am. For those shifts she was paid an allowance of £29.05, which included pay for up to an hour of any work she was expected to perform during that time.

However, if she was woken in the night and had to work for more than an hour, she would receive extra pay for the time worked.

Tomlinson-Blake had taken Mencap to an Employment Tribunal in 2016 and successfully argued she should have been paid the full minimum wage for time she spent asleep at the house of someone she cared for. 

In 2017, the decision was upheld by an Employment Appeal Tribunal and earlier this year, the case was heard by the Court of Appeal, alongside a second case, Rampersad v Shannon, which also refers to sleep-in work. 

Today, three leading judges said carers were only entitled to minimum wage when they were required to be awake for work.

The cases have been closely monitored by the care home sector as the total bill for paying staff during the night could be as high as £400m.

Derek Lewis, Chair, Royal Mencap Society, said: "The prospect of having to make large unfunded back payments had threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.

"Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed.

"We did not want to bring this case. We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and Government enforcement action, including serious damage to Mencap's work in supporting people with learning disabilities.”

Expert Opinion

“This is a significant judgment and unless successfully challenged it will save care homes thousands of pounds. The decision provides a clear dividing line between when workers are actually working and are entitled to paid at least the National Minimum Wage, and when they are only available for work and are not entitled to be paid.

“Essentially, workers who are required to sleep in at their clients premises, or remain at home on call will only be entitled to be paid if they are called on to perform work during those shifts.

“This is much more straightforward and the decision will be welcomed by care homes who have been subjected to changing and conflicting guidance from the government and HMRC. In 2017 many employers were encouraged to sign up to HMRCs Social Care Compliance scheme to declare how much they had underpaid staff for sleep in shifts in exchange for not receiving stiff penalties of up to £20,000 per worker or being publicly named for underpayment of National Minimum Wage. To be accepted onto the scheme, employers had to repay underpaid NMW to their workers and those that did so, are unlikely to be able to get that money back.”
Alan Lewis - Partner

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