Supreme Court rules against minimum wage for ‘sleep-in’ workers
Fiona Simpson
Friday, March 19, 2021
The Supreme Court has ruled against calls for care workers who carry out “sleep-in” shifts to be paid minimum wage for the hours they are asleep.
The case was brought by Claire Tomlinson-Blake, against learning disability charity Mencap, who sought to overturn a ruling made by the Court of Appeal in 2018.
Tomlinson-Blake’s union, Unison, argued on her behalf that care staff should get the minimum wage for night shifts even if they are asleep.
The claimant was paid less than £30 by Mencap for a sleep-in shift between 10pm and 7am, the court heard.
If judges had found in favour of Tomlinson-Blake’s case providers would have faced a total bill of £400m to reimburse staff.
A second case brought by John Shannon, a Surrey care worker, was also dismissed.
The Supreme Court stood by the Court of Appeal judgment which states that "the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working".
The cases involved adult social care workers, but the issue could have also affected staff working in children's residential care.
The issue has previously caused concern for children’s home providers after a survey carried out by the Independent Children’s Home Association (ICHA) in 2018 of around 100 providers revealed that one in 10 potentially face insolvency because they are unable to meet the costs of sleep-in pay.
The survey also found that some providers were changing their working practices to restrict the number of sleep-in shifts members of staff can work.
Ian Hudspeth, chairman of the Local Government Association’s (LGA) community wellbeing board, said: “This significant ruling is in line with councils’ and social care providers’ understanding of the law.
“Had the appeal been upheld, care providers and councils providing social care would have faced massive bills, which would have increased the huge financial pressures they are already facing.
“As we said in our submission to the court, the LGA strongly supports care workers being paid a fair wage for their valued work.
“Of course, the decision does not remove the need for a sustainable funding settlement for adult and children’s social care, which includes important decisions on the workforce such as pay, recruitment and career development.”
Peter Sandiford, chief executive of the ICHA, added: "Residential child care staff do an amazing job with far to little recognition both professionally and financially. We must work at creating a career pathway that is similar to that of other professions such as nursing or social work.
"If the Supreme Court had ruled differently their decision would have significantly impacted on the sector with some providers having to close thereby adding further to the disruptions experienced by the children we are caring for and further reducing the availability of Children’s Homes to provide love and care to them."
