Government says 'sleep-in' care workers aren't entitled to minimum wage

Care workers should not be paid the National Minimum Wage for every hour of a sleep-in shift, the government has announced.

New guidance by the Department for Business, Energy & Industrial Strategy (BEIS) has agreed with a ruling made by the Court of Appeal in July which found care workers are not entitled to the minimum wage for every hour of a sleep-in shift.

The court ruling overturned a previous employment tribunal which said overnight care workers should be paid the National Minimum Wage (NMW) rather than a flat fee.

The Court of Appeal ruling was brought by the learning disabilities charity, Mencap, due to fears over the financial implications of paying back millions of pounds to care workers for overnight shifts over the last six years.

A sleep-in shift is undertaken by workers who must stay at or near their workplace on the basis that they are expected to sleep for all or most of the period, however they can be woken up to undertake work.

The guidance has been criticised by VODG (the Voluntary Organisations Disability Group) "for not helping anyone and not going far enough".

Steve Scown, its chair said: “Government has the opportunity to use a statutory instrument to legislate once and for so all parties are clear on what the rate of pay should be for sleep in shifts. As things stand this type of work is totally unregulated.

"That leaves staff, commissioners and employers in limbo. We are already seeing hard pressed local authorities introducing cuts to previously agreed rates of pay for sleep-ins. It is inevitable that without government action we will see a postcode lottery of pay rates for overnight support.”

The guidance states: ‘If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep.

'However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift’.

Tim Cooper, chief executive at the disability charity, United Response, would like National Living Wage (NLW) rates to apply for sleep-in shifts.

He said: "There is a moral obligation for the Government to ensure a fair deal for employees and employers alike.

“The Government has a chance to do the right thing – enshrining and supporting the NMW by ensuring legislation is clear that all workers are entitled to the NMW and making sure cash-strapped local authorities genuinely have new money to fund overnight care.

“United Response remains committed to paying our staff fairly for the work they do but we can only do this if properly funded.”

Supreme Court judgement ‘unlikely to be issued before 2019’

Referencing the Court of Appeal’s ruling in the cases of Mencap v Tomlinson-Blake and Shannon v Rampersad, which has been appealed by trade union Unison and is awaiting a decision in the Supreme Court, the Government states: ‘This guidance reflects the law as it currently stands, in particular as determined by the Court of Appeal’s judgment.

‘If the Supreme Court considers the appeal being made, it might issue a judgment which changes the circumstances in which national minimum wage is due for sleep-in shifts. Any judgment is unlikely to be issued before 2019 and possibly not until 2020.

'Whilst any challenge in the Supreme Court is ongoing, employers must continue to comply with the law as it currently stands.’

‘Moral obligation’

A 2015 Employment Tribunal resulted in HM Revenue & Customs pursuing care providers offering sleep-in services for six years of back pay for all staff who had performed sleep-in shifts. This bill was estimated to be around £400 million for the entire care sector.

In 2017, HMRC set up the Social Care Compliance Scheme which gave care providers one year to self-assess their liability and a further three months to pay back workers. The Government did not increase money going to LAs or care providers for sleep-in shifts or offer new money to cover the back pay.

The potential financial shortfall expected by care providers has already led to some providers closing and handing back home care contracts.