Sleep-in care workers not entitled to minimum wage for whole shift, court rules

19 March 2021, 16:06

Carers are only entitled to the minimum wage when they are required to be awake for work.
Carers are only entitled to the minimum wage when they are required to be awake for work. Picture: PA

By Harriet Whitehead

Carers who need to sleep at work on overnight shifts are not entitled to minimum wage for their whole shift, the Supreme Court has ruled in a landmark decision.

Lawyers representing Claire Tomlinson-Blake, who was supported by the trade union Unison, argued carers who work so-called sleep-in shifts are "like a nightwatchman".

Tomlinson-Blake was paid £22.35 for a sleep-in shift between 10pm and 7am plus one hour's pay at the then-national minimum wage of £6.70, making a total of £29.05.

At a hearing in February last year, her barrister Sean Jones QC told the Supreme Court that carers like Mrs Tomlinson-Blake were getting less than minimum wage.

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Edel Harris, chief executive of the learning disability charity Mencap, which opposed Mrs Tomlinson-Blake's appeal, said that, if the appeals were allowed, care providers could have faced "devastating unfunded back-pay liabilities" of around £400 million.

John Shannon, who worked as an on-call night care assistant at a care home in Surrey, also challenged the 2018 decision by the Court of Appeal that sleep-in carers were not entitled to the minimum wage for the whole of their shift.

The Supreme Court unanimously dismissed Mrs Tomlinson-Blake and Mr Shannon's appeals in a ruling on Friday. This Supreme Court ruling means those on sleep-in shifts are not entitled to the minimum wage for their whole shift.

In the judgment, Lady Arden said a "sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for national minimum wage purposes".

She added that "the fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working".

Now the government has been called on to urgently reform laws on payments for these carers.

Speaking after the judgment, Mrs Tomlinson-Blake said: "This case was never about the money. It was about the principle of treating staff fairly.

"Sleep-in shifts aren't about just being on call - it's work. Staff are constantly on guard to protect the most vulnerable in society. The sound of a cough in the night could mean someone's in danger.

"It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too."

Unison general secretary Christina McAnea said: "No-one is a winner from today's judgment.

"Everyone loses until the Government intervenes to mend a broken system that relies on paying skilled staff a pittance.

"This dire situation was ignored by the Government for years before Covid, and again in the recent budget.

"Today's judgment shows ministers can't disregard the desperate need for major reform a moment longer."

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Edel Harris said Mencap understood that "many hard-working care workers will be disappointed", but added: "It is no exaggeration to say that, if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point.

"Some providers would have gone bust and, ultimately, the people who rely on care would have suffered."

Although the ruling was welcomed by Mencap, its chief executive called on the government to reform legislation covering "sleep-in" payments, which she described as "out-of-date and unfair".

She added: "More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better.

"It is disappointing that there is still no plan for social care reform."

Gail Cartmail, assistant general secretary of the trade union Unite, said the social care sector "has been facing a funding crisis for the last 20 years".

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She added: "It is now time for the Government to step in and change the legislation so care workers receive at least the national minimum wage during the course of the whole night."

A Government spokesman said: "We are aware of the judgment from the Supreme Court.

"Care workers perform a vital role and they have worked tirelessly throughout the pandemic to support our most vulnerable, and we are committed to supporting them.

"We have provided billions of pounds to support adult social care during the pandemic including on infection and prevention control measures, free PPE, priority vaccinations and additional testing."

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Care England, the body that represents independent care providers and which intervened in the earlier Court of Appeal case, welcomed the ruling.

Professor Martin Green, chief executive of Care England, said: "After a lot of uncertainty, it is useful to have this ruling from the Supreme Court.

"Our staff are our best resource and need to be valued as such.

"This is all part of the broader picture of the much-needed reform of the adult social care sector which we will continue to press the Government on."

He added: "Care England continues to call for a 10-year plan for adult social care, a key part of which is a workforce plan, akin to that of the NHS, where career progression, pay and rewards are identified.

"We hope that the Government will take account of this issue and the sector's economic fragility in its forthcoming spending review."

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Matthew Wort, a partner at Anthony Collins Solicitors, which represented Care England before the Court of Appeal, said: "While this judgment removes a serious risk for providers, the long-term stability of the UK social care sector hangs in the balance.

"The coronavirus pandemic has added significant pressure on providers already on their knees due to funding cuts, many of which are now assessing the viability of their services - to the potential detriment of people who rely on care for their day-to-day needs.

"Now is the time for central Government to increase its investment in the social care sector, providing the funding local authorities need to maintain healthy care markets."

The Local Government Association (LGA), which intervened in the Supreme Court case, also welcomed the ruling.

But the chairman of the LGA's community wellbeing board, councillor Ian Hudspeth, said "Today's decision does not remove the need for a sustainable funding settlement for adult and children's social care, which includes important decisions on the workforce such as pay, recruitment and career development.

"The Government should bring forward its proposals on adult social care funding as soon as possible."