The Supreme Court rules on payment of sleep-in shifts for support workers

Friday March 19, 2021

The Supreme Court has ruled against National Minimum Wage for time spent asleep during “sleep-in shifts”.

Today’s ruling on the case of Royal Mencap Society vs Tomlinson-Blake reinforced the findings at the Court of Appeal back in 2018.

Prior to this, judgment on these cases has not usually been in favour of the employer.

This is good news for care homes. It has been reported that the alternative would have seen the sector facing up to £400 million in back pay, a cost which no doubt would have forced many care providers to close.

The ruling will however come as a blow to many hard-working carers whose pay has been the topic of much debate during the pandemic. Mencap acknowledged this in their response to the ruling, calling for reform on the legislation and a “thorough and meaningful review of the social care workforce” by the government.

What is the history of this case?

In 2016 the Department for Business, Energy and Industrial Strategy (BEIS) released guidance on sleep-in shifts for care workers.

The guidance stated that carers should receive NMW for these shifts which included time spent asleep. It also stipulated that carers were to be compensated with six years’ back pay.

The Royal Mencap Society, along with others, disputed this by saying the back pay was unaffordable.

Mencap were also appealing an employment tribunal brought by support worker Claire Tomlinson-Blake over the matter of pay during sleep-in shifts.

Mrs. Tomlinson-Blake was receiving a flat rate plus one hour’s pay for these shifts. If she was woken up, her hourly rate applied for any hours worked beyond the first hour which was not paid. However, Mrs Tomlinson-Blake felt that she should have been receiving NMW for the entirety of the shift.

The employment tribunal found in favour of Tomlinson-Blake, but this was overturned at the Court of Appeal. Today’s ruling hands down a final judgement and provides clarity for employers on a care workers entitlement for sleep-in shifts.

What does the result mean for charities and carers?

Employers will not have to provide carers with six years’ back pay and are not legally obliged to pay NMW for time spent asleep during sleep-in shifts.

Care homes and other places that have staff who sleep in must make sure that if the worker is called on to work during the night, they must then be paid NMW for the time they are working.

Help with your people management and payroll

If you have questions about your people management or payroll concerning sleep-in shifts, please contact us for advice.

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