Flat rate for sleep-in care workers is fair
The court of appeal in Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House residential Home) has overturned a ruling on payments for care workers who carry out “sleep-in” shifts for clients with learning disabilities.
A court ruled last year that care workers should be paid the national minimum wage (NMW) for every hour of a sleep-in shift, rather than a flat rate. However, on Friday (13 July 2018), the Court reversed the decision and ruled flat-rate payments were fair, meaning the NMW does not apply to sleep-in shifts unless the worker is awake and working.
The Lord Justices’ key words were:
“For the reasons which I have given I believe that sleepers-in, in the sense explained at para. 6 above, are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 32, rather than actually working, within the meaning of regulation 30, and so fall within the terms of the sleep-in exception in regulation 32 (2); and we are not bound by authority to come to any different conclusion. The result is that the only time that counts for NWM purposes is time when the worker is required to be awake for the purposes of working.”
This ruling has been welcomed by many care providers and councils as it removes the financial burden on the adult social care sector.
Employers have called upon the government to issue new guidance on how workers are to be paid for sleep-in shift.
Unison called the decision a “mistake” that would enforce “pittance” pay on care workers. The union said it was considering an appeal to the Supreme Court.