close

Sleep-in shifts: Legal expert ‘cautiously optimistic’ for ruling in Mencap’s favour

Matthew Wort, partner at Anthony Collins Solicitors

After two days of legal argument, the Supreme Court has retired to reach its decision on the Tomlinson-Blake v the Royal Mencap Society.

A ruling isn’t expected for another three months, but in the meantime, Matthew Wort, a partner at Anthony Collins Solicitors, has expressed his opinion on which way the Supreme Court will go.

Wort, who helped Care England in its intervention on the case at the Court of Appeal, said he is “cautiously optimistic” that the Supreme Court will accept the case put forward by Mencap that the National Minimum Wage (NMW) regulations seek to achieve a “bright line”, such that in all cases where someone is required to sleep at a place of work and are provided with suitable facilities for sleeping, they are only working when they are awake and working.

Story continues below
Advertisement

During the hearing, Lord Wilson recognised the importance of having clarity for employers in what should be paid given the potential criminal sanctions if the NMW is not paid. 

Wort explained that the “multi-factorial test” put forward on behalf of Tomlinson-Blake to determine whether an individual is ‘working’ even though they may be asleep, would make it “very hard” for any provider to have clarity as to how the NMW regulations would be interpreted in their circumstances. 

“My feeling is that the judges will want to get through the uncertainty created by the lower courts in various decisions over the years and take a straight forward interpretation of the Regulations, reflecting the intention of parliament at the time.  However, they have lots of previous confusion in the cases to wade through so I am afraid we need to wait and see where they end up,” Wort said.

The partner stated that a number of comments were made that could suggest support for the sleep-in worker’s position. 

“For example, Lord Kitchin recognised how the arguments on behalf of Mencap would mean a worker who expects to be disturbed six times a night would still only be entitled to be paid for their disturbance time. This highlights one of the gaps in the legislation that the courts have effectively been seeking to fill,” he said.

Wort explained that if the decision goes in Mencap’s favour, care providers will then need to address their future approach to payment for sleep-ins, ensuring they remain competitive in the market, but working within the financial envelope available. 

He said the Low Pay Commission should be tasked with recommending a minimum payment for sleep-ins.

If the decision goes against Mencap, it could mean care providers having to assess their payments to workers over the last six years with the potential of HMRC enforcement action against them if there is a shortfall in NMW.

Care charities have estimated a sector-wide liability of £400m if all time spent during sleep-ins is found to be working time for NMW purposes.

“The six years will run from a future date – either the date of a Notice of Underpayment being served on the employer or the date a provider joins any new social care compliance scheme that may be established. All eyes would turn to HMRC to see whether and when they will establish a new compliance scheme,” said Wort.

“It would also mean an immediate need to ensure NMW is paid for all sleep-ins moving forward, and for funding to be found for that.  Providers may wish to engage with their commissioners now to see if they will commit to funding NMW for sleep-ins if the judgement goes against Mencap.”

Click here to read more details about the case.

Tags : Matthew Wortsleep-in shifts
Sarah Clarke

The author Sarah Clarke

5 Comments

  1. I worked last night as a sleep night for 3 clients
    They shout bang and scratch all through the night you don’t need to get up because it’s the norm. you cannot sleep while this goes on there are so many different clients how can you judge

  2. I believe people making these decisions should do some of these so called sleep in shifts (Not just 1) as they may get lucky! they would soon realise the minimum wage should be paid, I’ve done hundreds over the years, at times my employer just telling me it’s just part of the job being up with clients! Then expecting you to do a day shift in the morning!

  3. This article is complete tosh and poppycock! Support workers and care assistants are not allowed to leave their place of work when they are ‘sleeping’, so are effectively contracted to be there and need to be paid the NMW. Mencap support workers are pretty much stuck on shift even if the fall sick during the night, as they have to organise cover themself before they leave the house. The House of Lords is full of sleeping ‘old fools’ whenever coverage is shown on the television, but these ‘old fools’ still claim their full allowances. Are they going to stop paying firemen when they sleep-in at the station house? I think a lot of staff will give up doing sleep-ins if the sleep-in rate is effectively halved overnight! The sleep-in back pay bill will not be £400, as this was including fines for non-payment of NMW which has now been waived by HMRC. Lazy journalism….

    1. Hi Trevor, I completely understand your point, but this piece is based on the opinion of one person who has witnessed the hearing. We have also covered opinions from the National Association of Care and Support Workers and an article on the ‘reality of sleep-in shifts’ from Unison. These articles can be found on the website.

  4. I have to sleep in as part of a 24 hour shift, I start my shift at 11am and finish 11am the next day, during that time I would have had to travel to outreach support in a clients home and then travel on public services to drop the client off for an activity and then walk back to my place of work which will then be 4pm, then prepare dinner for 5pm when 3 residents return all who have autism … Then I have to support all 3 by myself.. Some with personal needs and also paperwork and cleaning then at 11pm when the sleep starts I’m lucky if I can even get a full hour that isn’t disturbed, one resident getting up constantly banging doors and shouting.. Another one coming out of the room all night coughing and then the sleep time is til 7am but I actually have to be on shift for 7 so obviously need time to get ready which is 6am… I have a sleep tracker on my watch and I average around 3hrs of broken sleep…. And I’m absolutely exhausted come 11am when it’s home time.

Leave a Response