Carers will not be paid for sleep-in shifts, appeals court rules

Three judges overturned an employment tribunal decision that Mencap worker Claire Tomlinson-Blake should be paid for the hours she slept on night shifts as well as for those she spent awake and looking after residents.

Lord Justice Underhill, sitting with two other senior judges, said: “I believe that sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception.

“The result is 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.”

In March, the Royal Mencap Society challenged the tribunal’s finding that, while asleep, Mrs Tomlinson-Blake nonetheless used her “listening ear” and her experience to know when she was needed and should therefore be paid for hours that she slept.

Prior to the decision, Mrs Tomlinson-Blake was paid for her full-time job helping vulnerable adults living in their own homes, but only received £29.05 (which included pay for an hour’s work) for occasional sleep-in shifts between 10pm and 7am.

If she was woken in the night and had to work for more than an hour, she would receive extra pay for the time worked.

Had the court rejected the appeal, Care England chief executive Professor Martin Green said the industry could have been facing an uncertain financial future.

“We hope it can now move forward, without a huge back-pay liability hanging over the sector and threatening the ongoing care of thousands,” he said.

However, unions blamed the government for failing to make adequate provision for the growing need for social care.

Unison general secretary Dave Prentis said: “Ministers are so consumed by Brexit that they’re ignoring huge problems around them.

“Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly,” he added.

Councillor Izzi Seccombe, chairman of the Local Government Association’s community well-being board, said: “We strongly support care workers being paid a fair wage for their valued work, but if this appeal was upheld it would have increased the risk of a sinkhole in adult social care.

“There is a £3.5bn funding gap facing adult social care by 2025. This gap needs to be fully funded by government so that providers can plan with more confidence,” she added.

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