In a highly-anticipated case against learning disability charity Mencap, the Supreme Court will this week hear arguments over whether time spent during sleep-in shifts in the social care sector counts towards working time.
In 2018, 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 on Wednesday (February 12).
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 for National Minimum Wage purposes.
Royds Withy King, a UK top 100 law firm, has said that given the significant funding crisis already facing the sector, and the current government’s apparent lack of an imminent solution, the financial viability of the sector could be brought into considerable doubt.
Mencap alone has stated that it has a £20m liability and is at risk of insolvency if required to pay it.
James Sage, head of the Social Care team at Royds Withy King, said: “For many years, care providers have paid staff carrying out sleep in shifts on the basis that the National Minimum Wage was not payable for the time spent asleep. This was consistent with HMRC guidance at the time. It also reflected the sleep-in rates paid by many local authorities, which were often as low as £30 and barely covered providers’ costs of providing the service.”
“However, from 2012 employment tribunals challenged this position and found that sleep-in shifts were working time and subject to the National Minimum Wage, only for the Court of Appeal in the Mencap case to decide differently in 2018.
“The confusion and uncertainty has caused considerable anxiety for care providers, who we all rely on to provide essential services to the most vulnerable in society.
“Despite the Court of Appeal ruling that only time spent awake and working is subject to the National Minimum Wage, HMRC has insisted that providers remain part of its Social Care Compliance Scheme, which was set up to encourage providers to voluntarily declare their non-compliance to HMRC.
“If the Supreme Court reverses the Court of Appeal decision, HMRC will be armed with all of the necessary financial information to enforce repayment from providers. However, many providers will simply not have the resources to pay so the Government needs to plan for alternative solutions to ensure the financial viability of the sector, which cannot be allowed to fail.
“We expect the Supreme Court to agree with the Court of Appeal decision that it was not Parliament’s intention for time spent asleep to be subject to the National Minimum Wage. If it doesn’t there will be a lot of work and sleep-less nights ahead for providers before they can finally put the issue of sleep-ins to bed once and for all.”
Home Care Insight previously reported that the National Association of Care & Support Workers (NACAS) welcomed the Supreme Court’s decision to grant carers the right to appeal in the ongoing legal battle, but has called on the Government to fund back payments.
Karolina Gerlich co-founder and CEO of NACAS said that the expectation on employers to pay for years of unfunded sleep-in shifts was “unrealistic”, but explained that it is the association’s continued belief that care workers are entitled to be paid “at least a national minimum wage” for time spent at work from this point forward.
Explaining the realities of a sleep-in shift, she said: “Most care workers are required to be at work in some instances for up to 12 hours a night, in an uncomfortable environment often consisting of an office and a sofa bed.
“Care workers very often can barely get an hour of uninterrupted sleep, due to the anticipation of being awoken to attend to the person they care for, or not being able to fall back asleep after being awake. It is therefore only fair that a sleep-in shift is considered as a working hours shift.”
The Trades Union Congress found last year that the care sector has the highest number of night shift workers in the UK, with 437,000 employees.
This is followed by nurses and midwives (232,000) and road transport drivers (208,000).
Across Britain, there are now 3.25 million night workers, 100,000 more than five years ago, according to the Office of National Statistics.