The Supreme Court has granted permission for an appeal against last year’s court ruling that care workers were not entitled to the minimum wage for sleep-in shifts.
The decision 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.
Last year, the Court of Appeal overturned the decision of a 2016 employment tribunal and a 2017 employment appeal tribunal, which found that Mencap should have paid carer, Clare Tomlinson-Blake, the full minimum wage during sleep-in shifts.
But in August the trade union Unison applied to appeal the Court of Appeal’s decision, and the Supreme Court has now allowed that appeal to go ahead.
A ruling in favour of Tomlinson-Blake would potentially mean that care providers must pay back penalties to large numbers of staff, which care charities estimate could cost the sector £400m and result in some organisations going bankrupt.
Jan Tregelles, chief executive of Mencap, said the decision plunges the care sector back into uncertainty and underlines the need for the Government to legislate so the position is clear.
“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,” she said.
Mencap states on its website that since April 2017, it has ensured that all of its support workers carrying out sleep-ins are paid in line with the National Living Wage requirements and despite the Court of Appeal ruling “we plan to continue this payment”.
“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,” added Tregelles.
Matthew Wort, Partner at Anthony Collins Solicitors, also argued that the decision “extends uncertainty” for a care sector “desperate for extra government investment”.
The date for the Supreme Court hearing is yet to be announced, but it has been confirmed to Wort that it will not be until October 2019 at the earliest.
“Care providers are in urgent need of both consistency and clarity about sleep-in pay, but sadly the wait for a definitive final position on the issue is many months away,” he added.
“In the meantime, we hope commissioners of sleep-in care will maintain payments to providers, enabling them to continue their current pay practice for sleep-ins.”
Anthony Collins solicitors represented Care England, a representative body for independent care services, when it worked with social care charity Mencap to successfully reverse the 2016 employment tribunal judgement.
Unison said the decision was “extremely good news” and argued that there is now a chance to clarify the law “once and for all”.
Dave Prentis, general secretary for the trade body, said: “Across the UK, thousands of care staff work sleep-in shifts looking after vulnerable adults and children, many with significant, challenging needs. As a society we should be celebrating the valuable job care workers do, not expecting them to survive on a pittance.
“Care employees are working on sleep-in shifts so this time should be counted as working time. They aren’t free to come and go as they please and, as often the sole member of staff, they’re likely to be on their feet for much of the night.
“Any local authorities or care providers seeking to take advantage of the uncertainty of the current situation by cutting pay rates now are acting irresponsibly. Sleep-in shifts should continue to be treated as working time, and paid accordingly.”
Meanwhile, the Voluntary Organisations Disabilities Group (VODG), which represents voluntary and charity social care disability providers, said the Government must resolve the “long running uncertainty” about payments and funding for sleep-in staff.
Chief executive Dr Rhidian Hughes said: “The long-running uncertainty about payments and funding for sleep in work has created huge uncertainty in social care for many years. We have grave concerns over the lack of clear regulations.
“We are calling on government to consult widely with workers, employers, commissioners and other stakeholders and clarify what hard working staff are entitled to, and precisely how it, and commissioners, will fund essential overnight support.”