The Court of Appeal has ruled that social care organisations, including many charities will not have to pay hundreds of millions of pounds of back payments to sleep-in care workers.
Care workers, who provide care for people with serious learning disabilities overnight, used to be paid a sleep-in standard rate of between £35 to £45 a night. This reflected the fact that they may be sleeping during part of their shift.
However, during an employment Tribunal in 2015, a former Mencap care worker was found to be entitled to receive the national minimum wage for each hour of sleep-in shifts completed, plus six years of back payments.
Charities, such as Mencap, argued that back payments estimated at £20 million, was unaffordable. Derek Lewis, chair of Mencap said: “The prospect of having to make large unfounded back payments had threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers”.
Therefore, Mencap challenged the employment Tribunal’s decision in with Court of Appeal (Royal Mencap Society V Tomlinson-Blake). The Court ruled on 13 July 2018, that that care providers had no liability for back payments.
Lord Justices Ernest Ryder and Nicholas Underhill, said: "I believe that sleepers-in...are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception in regulation."
A union said that workers should be paid what they were legally entitled to. A union, UNISON, are considering going to the Supreme Court after the ruling which reversed government guidance that meant care sector employers were owned six years of back payments.
However, one successful outcome of this appeal, means that employers are now paying care workers the hourly minimum wage who sleep overnight whilst working. This means that care works doing an overnight shift would earn approximately £60 for eight hours of sleep.
Please contact Conroys Solicitors LLP on 01872 272457 if you wish to seek advice about any employment issues.