By Charlotte Webster-
Care providers don’t have to pay back millions of pounds in arrears to care workers following a Supreme Court ruling.
The landmark judgement on the Royal Mencap Society v Tomlinson-Blake sleep-in case, has saved care providers an estimated £400m which would have to have been paid to carers across the UK.
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The Supreme Court ruled that carers do not have to paid minimum wage for a full sleep-in shift.
In 2018, the Court of Appeal overturned the decision of a 2016 employment tribunal and a 2017 employment appeal tribunal. That ruling found that learning disabilities charity Mencap should have paid carer, Clare Tomlinson-Blake, the full minimum wage during sleep-in shifts.
Tomlinson-Blake and other carers provided 24-hour support to two men in their own home. She worked either a day shift or a sleep-in shift.
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The first appeal in 2018 saw care support worker Mrs Tomlinson-Blake, employed by The Royal Mencap Society since 2004, be denied sleep-in shift pay for the first hour she had to awake to meet care duties.
Tomlinson-Blake had cared for two men with autism and learning difficulties, was paid a flat rate of £22.35 plus one hour’s pay of £6.70 for a sleep-in shift from 10pm to 7am.
This ruling will be disappointing for any care worker who believes they should be paid minimum wage for the entirety of the time spent on ‘sleep-in’ shifts,” employment partner at law firm Shakespeare Martineau, Matt McDonald, said.“
The case has been in the pipeline for some time and if the Supreme Court had sided with Mrs Tomlinson-Blake, the shockwaves would have been felt throughout the care sector.”
Amelia Goodwin, Associate, Charles Russell Speechlys, said: “Employers, particularly those in the social care sector, will be breathing a sigh of relief following the Supreme Court’s ruling today.
“When interpreting the national minimum wage legislation, the Court’s decision took into account the Low Pay Commission recommendation that sleep-in workers are only entitled to the national minimum wage, for hours when they are actually working.”
Emma Burrows, Head of Employment at Trowers, said: “This welcome decision for care providers is likely to result in further pressure on retention of staff in a sector where the pandemic has hit hard, and turnover is generally high.
What remains clear is the need for public dialogue to help resolve the future of care services and a discussion about what pay is appropriate for those who support the vulnerable.”
Matt McDonald, employment partner at law firm, Shakespeare Martineau, said: “This ruling will be disappointing for any care worker who believes they should be paid minimum wage for the entirety of the time spent on ‘sleep-in’ shifts. The case has been in the pipeline for some time and if the Supreme Court had sided with Mrs Tomlinson-Blake, the shockwaves would have been felt throughout the care sector.
“By contrast, care providers will be mightily relieved that their longstanding approach of paying a fixed rate for ‘sleep-in’ shifts has been confirmed by the Supreme Court as legally sound.”
Paul Chamberlain, Head of Employment at JMW Solicitors, said: “Care providers can breathe another huge sigh of relief today. They are guaranteed to escape the financial toll of significant extra costs and back-pay liabilities, which it was predicted would have forced many employers in the sector into insolvency.
“No longer will care business face claims that they underpaid staff, and there will be respite from similar ‘copycat’ claims, currently in the legal system, which are now likely to fall away.
“But while there will be celebrations today, many businesses in the sector face the future reality of turbulent employee relations with disgruntled staff; staff who had been pinning their hopes on the possibility of additional pay going forward, as well as significant back pay.”
Sue Harris, GMB Legal Director, said: “GMB had already raised an eyebrow at the Court of Appeal decision – and we suspect many people will be surprised by today’s ruling.
“It essentially means if you are at your employers’ premises – not at your home – able to sleep, but know you may be disturbed at any time during that sleep, then those hours don’t count for the purposes of working time.
“Not many people would be able to sleep knowing they could be called to action at any moment.
“We have seen throughout the pandemic the wonderful work that carers do, they are the group in our society most likely to be on the minimum wage and that they are predominantly women and predominantly Black, Asian, Minority Ethnic employees.
“This was a chance to address one of the reasons for the low pay of carers, it’s a shame it wasn’t seized upon.”
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