Back on the 13th July 2018, the Court of Appeal ruled in the case of Royal Mencap Society v Tomlinson-Blake [2018] EWCA Civ 129, CA that those required to undertake sleep in shifts were not entitled to national minimum wage payments for those shifts. Instead, there is only a requirement to pay them the national minimum wage when they are required to be awake for the purpose of working. However, this ruling was appealed, and the case was heard by the Supreme Court on the 12th-13th February 2020. Judgment is expected shortly
Sleep In Shifts: Court of Appeal Ruling
At the Court of Appeal hearing on sleep in shifts and the national minimum wage, the similar case of John Shannon v Jaikisham and Prithee Rampersad (trading as Clifton House Residential Home) was heard with the Mencap case. The Court ruled that workers are only entitled to be paid the national minimum wage for time spent when they are required to be awake for the purpose of working. In arriving at its decision, the Court pointed out that under Regulation 32 of the National Minimum Wage Regulations 2015, it specifically states that a worker should only be paid the national minimum wage for hours "when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping." The Court ruled that this stipulation applied to sleep in shifts in which workers were "contractually obliged to spend the night at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken if required to undertake some specific activity."
Appeal To The Supreme Court
The Supreme Court heard the appeal on the 12th-13th February 2020, after Unison (acting on behalf of Tomlinson-Blake) had been granted permission in February 2019 by the Supreme Court to appeal the Court of Appeal ruling. A decision from the Supreme Court is expected to be handed down shortly. Should the Appellants be successful in their appeal on the issue of sleep in shifts and the national minimum wage, then it will have enormous implications for the care sector and would likely bankrupt many providers. It may also lead to many handing back contracts, as it would mean that they would owe huge numbers of workers considerable amounts of money in terms of back pay. Some estimate that the back pay could collectively amount to £400 million. Furthermore, providers could also face fines from the HMRC in relation to breaches of the national minimum wage rules, and would have to put in place funding for sleep in shifts going forward.
The chief executive of the Voluntary Organisations Disability Group, Rhidian Hughes, recently stated that: "While we wait for the [decision of the Supreme Court], commissioners and providers should be working together to ensure stability in the provision of overnight services. This collaboration is happening in a number of areas. But in other areas there are examples of knee jerk reductions in the fees commissioners pay to providers for overnight support. These fee reductions risk damaging services and adding further pressure to the sector’s workforce retention and recruitment challenges."
Meanwhile, Ian Pritchard, the Chief Executive Officer at Alternative Futures Group (AFG) warned that: "It’s plain that funding needs to increase both for the benefit of dedicated support workers and to ensure a professional standard of care in the future. Otherwise, unfortunately many more service providers will have to hand back contracts to commissioners."
On behalf of the Royal Mencap Society, the chief executive, Jan Tregelles, said at the time permission to appeal to the Supreme Court was granted that: "For us, this was not about what we currently pay our dedicated support workers for sleep-ins. We pay National Living Wage rates and have no plans to stop. We did not want to bring this case, but had to because the prospect of having to make large unfunded back payments threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers. What is clear though, is that dedicated care workers deserve a better deal. They work hard and support some of the most vulnerable people in society, but many are among the lowest paid. We call on government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.”
