Sleep-in shifts: the care sector holds its breath

The most recent update can be found here.

The issue of pay for sleep-in shifts remains unresolved and continues to cause considerable concern in the care sector.

In 2017, we reported with two articles (National minimum wage and sleep-in shifts…the government published long awaited guidance) and (Are workers entitled to the national minimum wage when they are on standby or sleeping at work?) on the case of Royal Mencap Society v Mrs  Tomlinson Blake which concerned whether employees undertaking sleep-in shifts were entitled to be paid at national minimum wage (“NMW”) for all hours of the sleep-in shift or whether they could be paid a flat rate. At the time, a critical judgment in favour of employees established that the majority of sleep-in shifts should be counted as “working time” and therefore paid at NMW rate. This was met with grave concern from the care industry, as many providers faced potentially crippling liabilities for back pay to staff who had undertaken historic sleep-in shifts. It will come as no surprise, then, that Mencap sought to overturn this judgement on appeal. The appeal by Mencap was allowed and, in July 2018, the Court of Appeal held that sleep-in workers were only entitled to NMW when they were awake for the purposes of working.

The Mencap decision in the Court of Appeal is currently binding law and therefore approves the practice of playing flat rates for sleep-in shifts. UNISON have however sought permission from the Supreme Court (the highest court in England & Wales) to appeal the judgement. Permission was granted on 13 February 2019, and the appeal hearing is currently set to take place in February 2020.

The effect of the appeal is once more to cast uncertainty over the obligations of employers in this area. The CEO of Mencap Jan Tregelles believes that the decision of the Supreme Court to hear the appeal “plunges the care sector back into uncertainty” and has further stated “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.”

Mencap have produced an interesting FAQ on the topic, which can be accessed via their website. One point to note from their replies is the suggestion that if the Government had confirmed it would settle any liability arising from the decision then Mencap might not have pursued their successful appeal to the Court of Appeal.

UNISON, the union backing the claimant employees, claim that this is a chance to set the record straight once and for all and to ensure that care workers are paid what they consider to be a fair amount.

The impact of this dispute, and heightened awareness around pay for sleep-in shifts, is clearly being felt by care providers. A Merseyside charity (Alternative Futures Group) who provide support for vulnerable adults proposed to cut sleep-in top-up payments by £15 for each shift. The anticipated £2,000 reduction in annual wage led hundreds of employees to strike against these cuts in March of this year.

There have been calls from both sides for the government to legislate on the divide. This would clarify any ambiguity and would set out clearly the employer’s obligations as regards NMW and sleep-in shifts.

The entire care sector will hold its breath in anticipation of a huge decision next year.

We will, of course, continue to keep you updated.

For any employer or employee unsure about how to proceed in this time of uncertainty, or about their position in light of the recent rulings, please feel free to contact either Louise Attrup or Michael Kerrigan for further advice.