An employment law specialist has urged care providers to prepare for a ruling against Mencap ahead of the long-awaited decision on the landmark sleep-in shift case.
On Friday the Supreme Court will deliver its judgment in the case of Tomlinson-Blake v Mencap. In this long running case, the court has been asked to consider whether ‘sleep-in time’ should be classified as working time, and therefore be subject to the requirements of National Minimum Wage regulations.
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.
Social care groups have previously warned that as many as two-thirds of employers in the care sector face insolvency if they were required to pay the back-pay bill.
But ahead of the judgment Jennifer Jenkins, an employment law specialist at Browne Jacobson, said care providers must prepare for this.
“Given the potential consequences, care providers should start taking pragmatic steps to deal with the outcome of this appeal should it go against Mencap,” she said.
Jenkins suggested that care providers should consider how sleep-in shifts are utilised in their organisation and their potential liability if they are ordered to meet back payments in respect of the National Minimum Wage.
“It would also be a good idea to agree a communications strategy on how they intend liaising with staff about the potential impact of the judgment. It is also likely that the Government would reopen its compliance scheme for care sector employers to assist with making back payments and employers should keep an eye out for more news on this,” she added.
Jenkins said providers should also seek to review the contracts with their staff, identifying those contracts which may become unsustainable in light of future wage rises.
“Where potentially unviable contracts are identified, providers should liaise with the local authorities responsible for commissioning care services to discuss increases to funding to cover the potential wage increases,” she said.
“However, the reality of this is that many authorities are themselves struggling and may not be able to support an increased budget for social care services. Exiting unsustainable contracts should be the final straw for care providers, however the reality is that there may be circumstances in which serving notice is the only suitable option available.
“It is clear that no matter what the decision, providers and the Government must work together to find a viable solution which avoids a ‘race to the bottom’ in the sector and which would undeniably jeopardise care standards.”