The Supreme Court has today provided some long-overdue clarity on whether sleep-in carers remain entitled to be paid whenever they are awake and working.
The question the court was asked to answer was “is a ‘sleep-in shift time work’ for the purposes of the National Minimum Wage Regulations 1999 and 2015?”
What happened?
The facts of the case (Royal Mencap Society v Tomlinson-Blake) involved a care support worker, providing care and support to two men with autism and substantial learning disabilities. The two men lived in a privately-owned property and required 24-hour support. Support workers were organised into day and night (sleep-in) shifts, the latter covering the hours between 10 pm and 7 am.
The carer was required to remain at the house and remain vigilant during the night and intervene if necessary. There were six occasions in 16 months when one of the carers had to intervene and she received £29.05 for the nine-hour sleep-in shift.
Another carer worked as an ‘on-call night care assistant’ in a residential care home. He was provided with free accommodation and paid £90 per week. He was required to be in the flat between 10 pm and 7 am and to respond to any request for assistance but could otherwise sleep.
What was the outcome?
The Supreme Court ruled that sleep-in carers remain entitled to be paid whenever they are awake and working but not, as the care workers who brought the case had hope, when they were sleeping.
Previous cases held that a worker could be ‘working’ even if not required to be awake (or simply be available for work) if a need arose. This would tend be for personal care for vulnerable people.
What could this mean for employment and the care sector?
This is likely to come as some relief to the care sector employers who have suffered more than most during the pandemic and the prospect of having to backdate pay to thousands of employees would have put many at risk of closure altogether.
However, it is also likely to be a disappointment to some of the poorest paid workers in the country. It remains open to the Government to change the law and no doubt it will come under increased pressure to do so given the year the workers in the sector have had.
This may severely impact the ability of the care sector to recruit. The prospect of taking an overnight job for what would be considered less than the minimum wage is unlikely to incentivise many. The result is that standards of care will be impacted, and more pressure put on other public services.
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