Date set for Supreme Court ruling on sleep-in shift case

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The long-awaited judgement on the Royal Mencap Society v Tomlinson-Blake sleep-in case will be handed down this week.

The Supreme Court has posted a notice on its website stating that a decision will be made at 9.45am on Friday (March 19).

In February 2020, the court heard an appeal against a landmark ruling in favour of Mencap to deny sleep-in care workers the minimum wage when on call.

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The latest ruling could see care providers forced to pay an estimated £400 million in arrears allegedly owed to care workers deemed to be underpaid for overnight shifts.

In 2018, the Court of Appeal overturned the decision of a 2016 employment tribunal and a 2017 employment appeal tribunal, which found that learning disabilities charity Mencap should have paid carer, Clare Tomlinson-Blake, the full minimum wage during sleep-in shifts.

Tomlinson-Blake and other carers provided 24-hour support to two men in their own home. She worked either a day shift or a sleep-in shift.

Sleep-in shifts lasted nine hours and she received a flat rate of £29.05 for this. Tomlinson-Blake had her own room and could sleep during the shift, but was required to keep “a listening ear out” during the night and provide support where needed and to respond to any emergencies. 

The need was “real but infrequent” and Tomlinson-Blake had to intervene on six occasions during the previous 16 months.

The employee argued she should receive the minimum wage for every hour of her sleep-in shift.

However, the Court of Appeal found employees who stay at a vulnerable person’s house overnight are only entitled to the national minimum wage while they are carrying out their duties, not for the full duration of their sleep-in shift.

The judgment said that workers were either available for work or actually working.

But in August 2018, trade union Unison applied to appeal the Court of Appeal’s decision, and the Supreme Court allowed that appeal to go ahead in February 2020.

The impact of the ruling could be significant, with care charities estimating a sector-wide liability of £400m if all time spent during sleep-ins is found to be working time.

Mencap has also stated that it has a £20m back pay liability and is at risk of insolvency if required to pay it.

Click here to read more details about the case.

Tags : sleep-in shifts
Sarah Clarke

The author Sarah Clarke

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