Care workers are not entitled to minimum wage for sleep-in shifts, rules Supreme Court

The Supreme Court has ruled in favour of Mencap and dismissed an appeal that would have forced care providers to pay the national minimum wage to care workers doing sleep-in shifts.

Clare Tomlinson-Blake, a care worker for Mencap, had appealed against a Court of Appeal hearing that when care workers carry out sleep-in shifts overnight, they should only be paid the minimum wage if they are awake.

She challenged the decision at the Supreme Court in February last year alongside an appeal brought by John Shannon, a care home worker whose case was heard along with Mrs Tomlinson-Blake’s at the Court of Appeal.

The Supreme Court has now dismissed both Mrs Tomlinson-Blake and Mr Shannon’s appeals.

The legal battle over pay for sleep-in shifts has been waging for five years and if the Supreme Court had ruled in favour of care workers, home care and care home providers would have faced huge claims for backdated pay. Mencap claimed it would bankrupt small care providers and lead to a £400m bill in backdated claims.

Speaking after the judgment, Clare Tomlinson-Blake said: "This case was never about the money. It was about the principle of treating staff fairly.

"Sleep-in shifts aren’t about just 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."

'Care providers no longer face a potentially catastrophic financial outcome'

Matthew Wort, partner at Anthony Collins Solicitors, which represented Care England in its intervention on the Mencap vs Tomlinson-Blake case at the Court of Appeal, said: “The Supreme Court’s decision means UK care providers no longer face a potentially catastrophic financial outcome that could have jeopardised the care of thousands of people.

“This case was not about what care workers should be paid. Instead, it focused on the interpretation of national minimum wage regulations, with the law and previous government guidance making clear that carers are not working while asleep.” He added that the judgement “puts an end to many years of uncertainty” and said: "It should be seen as a line in the sand, with the focus now on ensuring changes are made in how workers are remunerated to ensure appropriate pay for time asleep."

Martin Green, chief executive of Care England, said: “After a lot of uncertainty it is useful to have this ruling from the Supreme Court.

"Care England continues to call for a ten year plan for adult social care, a key part of which is a workforce plan, akin to that of the NHS, where career progression, pay and rewards are identified."

Matt McDonald, employment partner at law firm, Shakespeare Martineau, echoed these sentiments saying “if the Supreme Court had sided with Mrs Tomlinson-Blake, the shockwaves would have been felt throughout the care sector.

“If the Supreme Court’s decision had gone the other way, the bills facing care providers for historic underpayments would have been substantial and, in some cases, devastating. Many simply couldn’t have afforded to pay and we would therefore seen a large number of providers teetering on the brink of financial ruin, putting further pressure on UK care standards.”

'This was a chance to address one of the reasons for low pay of carers'

However GMB union expressed its disappointment over the ruling, with Sue Harris, its legal director saying: “This was a chance to address one of the reasons for the low pay of carers, it's a shame it wasn't seized upon.”

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."

Ms Tomlinson had worked for Mencap caring for two men with autism and learning disabilities in their homes and was paid a flat rate of £22.35 plus one hour’s pay of £6.70, £29.05 in total for a sleep-in shift from 10pm to 7am. She was expected to keep a ‘listening ear’ out and give support if needed. If she was woken, she was not paid for the first hour but any further hours were paid in full.

London home care provider says it will not lower its sleep-in pay

Robert Stephenson-Padron, managing director at Penrose Care, which was one of the first four home care providers in 2012 to become an accredited living wage employer, called it a “very disappointing day” and said: “It is especially sad the Supreme Court would make such a ruling amidst the country’s social care workers risking their lives in the service of others during a global pandemic.

“For many years Penrose Care was one of only a handful of providers that fully complied with the prevailing, prior to the previous Court of Appeal ruling, interpretation of the NMW law for sleep-ins and were hoping for a Supreme Court ruling that would force our peers to join us.

“Penrose Care’s heroic care workers however can rest assured that we will not be lowering their sleep-in pay to be in line with our peers. We will rather double our efforts to explain to potential clients why ethical labour standards in care lead to better outcomes.”

The judgement "will be hugely disappointing for those members of the social care workforce," according to Colin Angel, policy director at United Kingdom Homecare Association (UKHCA).

He said: “UKHCA calls on central government to provide statutory guidance to councils and the NHS on funding care work, including sleep-in duties, at a level which shows the true value that society should give to members of the social care workforce.

“In the meantime, we urge those local councils and NHS organisations who have so far taken the responsible position of funding sleep-in duties at or above the statutory minimum to continue to do so.”

Low Pay Commission needs to establish fair rate of pay for care workers

In the wake of the ruling, the Voluntary Organisations Disability Group (VODG) is calling on the government to instruct the Low Pay Commission to establish a fair rate of pay for social care workers who provide overnight support.

Historically, most care workers received a flat rate payment for each sleep in shift – typically around £35. This was topped up by pay at the national minimum wage hourly rate when they were awake and providing care or support.

Dr Rhidian Hughes, chief executive of VODG, said: “Clearly, there are no winners or losers in this case. While the judgement provides some welcome clarity to this issue, there is still significant uncertainty that can only be resolved by the Low Pay Commission carrying out a consultation and review, and for the Department of Health and Social Care to bring forward a workforce strategy for the social care sector.

“We are concerned of potential knee jerk reactions of local authority commissioners up and down the country which could see funding reduced, and therefore the pay of staff affected.”

Dr Hughes added: "This case was not about what care workers should be paid – it was about the narrow interpretation of national minimum wage regulations. Now the sector has some clarity on this issue, there is an opportunity to introduce a system that enables government, commissioners, and providers to place proper value on the work of social care professionals, and on the vital care and support they provide to disabled people."