Sleep-in care workers not entitled to minimum wage for whole shift, court rules

Updated: Mar 22, 2021

Court dismisses appeals from two care workers - while care organisations say they've avoided a 400m "catastrophic financial outcome".

Care workers across the UK who have to sleep at their workplace in case they are needed are not entitled to the minimum wage for their whole shift, the Supreme Court has ruled.

Care organisations said the ruling meant the sector had avoided a "potentially catastrophic financial outcome" and estimated back pay liabilities of £400m.

The case was brought by Clare Tomlinson-Blake against the learning disability charity, Mencap.

She challenged the decision at the Supreme Court alongside a linked appeal brought by John Shannon, a Surrey care home worker whose case was heard along with Mrs Tomlinson-Blake's at the Court of Appeal.

Unison, who were representing Ms Tomlinson-Blake argued that care staff should get the minimum wage for nightshifts even if they are asleep.

"I was deeply disappointed. I thought this was an opportunity for things to change, and for health and social care workers to start to be valued more, and the work that they do, which is the most important work that you can ever do," she said.

In the Supreme Court's 32-page written ruling on Friday, which followed a hearing in February last year, Lady Arden said that "sleep-in workers... are not doing time work for the purposes of the national minimum wage if they are not awake".

She added: "The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for national minimum wage purposes and the fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working."

Mrs Tomlinson-Blake, was paid less than £30 by Mencap for a sleep-in shift between 22:00 and 07:00.

Although she could sleep, she was expected to keep a "listening ear" out for the home's residents and provide them with support if needed during the night.

Over 16 months, she was called on six times, receiving no extra money for the first hour she was disturbed, although after that she was paid at the full day-time rate.

Unison general secretary Christina McAne,said: "No one is a winner from today's judgment.

"Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance."

Edel Harris

Edel Harris, chief executive of the Royal Mencap Society, said she understood "many hard-working care workers will be disappointed" by the ruling.

"They are dedicated in their care for people with a learning disability and should be paid more."

She added that Mencap contested the case because of the devastating unfunded back pay liabilities facing providers across the sector.

"Sleep-ins are a statutory care service which should be funded by local authorities, and ultimately government.

"It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point."

Ms Harris called on the government to reform legislation covering "sleep-in" payments, which she described as "out of date and unfair".

A Downing Street spokesman praised the "tireless" work of care workers but would not say whether social care reforms, promised this year, would address the issue of overnight pay.