Can care worker sleep-in back pay row be put to bed with new court ruling?

The Appeal Court has ruled in favour of Mencap, by overturning a previous employment tribunal which said overnight care workers should be paid the National Minimum Wage (NMW) rather than a flat fee.

The Employment Tribunal reversal means sleep-in shift care workers can only receive the full hourly rate for waking hours where they are assisting the client; previous flat rate payments, usually of about £30 are now deemed legally acceptable.

The appeal was brought by the learning disabilities charity, Mencap. It was estimated the amount of back pay owed to care workers for overnight shifts over the last six years may be as much as £400m.

Lord Justice Underhill, sitting with two other senior judges in the Court of Appeal, said: "For the reasons which I have given 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.

"The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working."

‘This decision is not a victory’

Not all in the care sector are celebrating this news, and one trade union is already saying it will take the case to the Supreme Court. The varied response to the announcement has demonstrated how government, unions, care groups and charities are all still deeply divided on the matter.

Dr Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group (VODG) said: “This decision is not a victory, nor does it provide the substantive clarity necessary, following years of indecision on this vital question for social care services and the valuable care workers who run them.

“People throughout the UK who rely on care services, care workers and the providers of these essential community services deserve a swift resolution - Government must legislate and pledge funding that will support care services now and into the future.”

However, Professor Martin Green, chief executive of Care England, was more positive. He said: “We welcome the Appeal Court ruling and hope we can now move forward, without a huge back pay liability hanging over the sector and threatening the ongoing care of thousands, to ensure we focus on getting social care services funded properly for the future.”

Unions say ‘Judgement is a mistake’

UNISON and other trade unions are bitterly disappointed with this result. They are saying that the new ruling is ‘is at odds with legal precedents’. General secretary of UNISON, Dave Prentis said: “This judgment is a mistake, but let’s be clear where the fault lies. The blame for this sorry state of affairs that’s hitting some of the country’s lowest paid workers must be laid at the government’s door.

“Ministers are so consumed by Brexit that they’re ignoring huge problems around them. Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly.

“Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people. With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can.”

After the decision, UNISON is considering taking an appeal to the Supreme Court.

But Tom Long, who is a healthcare employment specialist at Shakespeare Martineau, said: “This ruling will be a huge relief to care providers, who faced a vast hike in their future pay bill, together with significant claims for back pay.

"However, with HMRC previously pledging to take action around enforcing the back payments of National Minimum Wage for sleep-in work, a number of questions still remain to be answered around their action taken to date.”

The employment law specialist believes that if the original employment tribunal ruling had been upheld, it would have had "significant ramifications for the entire sector, with massive uncertainty prevailing around where the money would come from to pay for social care in the future.”

Government needs to ‘remove confusion’

Dr Hughes says the government needs to make sure there is clarity in any legislation going forward. He explained: “Now the government has a chance to do the right thing - enshrining and supporting the National Minimum Wage (NMW) by ensuring legislation is clear that all workers are entitled to the NMW and funding all essential services at this level."

He continued: “We are calling for additional new money pledged for overnight care to fund the NMW to make sleep-ins fair and fit for the future. We call on government to make clear its intention to introduce urgent legislation so that time spent asleep is taken into account when calculating NLW/NMW.

“There needs to be a clear set of rules about exactly when NLW applies, and for government to fund these vital statutory services to avoid any future crises.

"Without this decisive action, our staff remain in an uncertain position with regards to their pay.”

Tim Cooper, co-chair of Learning Disability Voices and chief executive at United Response, advocates a tougher stance, saying workers should get paid NLW whether or not they were asleep or working on their night shifts. He said: “Our workforce is our greatest asset, we believe that National Living Wage (NLW) rates should apply for sleep-in shifts, the government has said that they agree.

“We call on the government to act swiftly and decisively to remove the confusion by setting out in law that NLW applies to sleep in shifts and to remove the fear by ensuring providers are properly funded for all shifts, including sleep-ins, at the NLW.”

One thing that trade unionists and the care sector are in agreement about, however, is that something urgently has to be done about social care funding.

Mr Cooper urged the government to act now and stop putting off vital social care funding. He said: “There is a moral obligation for the government to ensure a fair deal for employees and employers alike. It is now over to the government who need to provide stability for the sector after the last three years of uncertainty.”

Some care providers including Mencap are now paying their care workers the minimum wage for overnight shifts. Mencap has said it will continue to do this despite the ruling.