The sleep-in ‘crisis’ has rarely left headlines since the issue arose in 2016. The most recent appeal was heard in February this year, and the sector is hoping that the Supreme Court will make its final decision later this year.
The case so far
The debate around sleep-in shifts came into the public eye when former Mencap employee, Clare Tomlinson-Blake challenged the fact that she wasn’t being paid National Minimum Wage (NMW) for the entire duration of her sleep-in shift, but was only paid if she was required to be awake, after the first hour of waking. She took the case to the Employment Tribunal, which ruled that she was entitled to receive NMW for all of the hours she spent either sleeping or awake – a decision which was unsuccessfully appealed by Mencap at the Employment Appeal Tribunal.
Mencap escalated the case to the Court of Appeal and, on 13th July 2018, the Court of Appeal ruled in favour of the provider, stating that care workers were not entitled to be paid NMW for the hours spent sleeping on a sleep-in shift. It did, however, say that NMW should be paid for all waking hours when staff were required to carry out duties.
Unison, representing Tomlinson-Blake, lodged an application to appeal to the Supreme Court to appeal the decision once again. The Supreme Court has now heard the case, and the sector is awaiting its final decision, which is not likely to be made until summer at the earliest according to experts.
The back-pay bill
Before the decision by the Court of Appeal, the entire sector had concerns over what it would mean for social care providers were the Employment Appeal Tribunal’s decision to be upheld.
Surveys showed that nearly 70% of the care sector was threatened by the sleep-in pay crisis, with an estimated £400m back-pay bill that providers were worried they would have to find, despite not being able to afford it.
As a tool to help, HMRC created the Social Care Compliance Scheme (SCCS), introduced on the back of three separate appeal cases dealing with the issue of sleep-ins (one of which was the Mencap v Tomlinson-Blake case).
The SCCS was aimed at encouraging providers to reimburse staff for any NMW ‘underpayments’ related to sleep-in shifts.
It effectively gave providers who signed up to it more time to determine whether they had underpaid staff and more time to pay care workers the arrears.
Many providers were reluctant to sign up, and once the Court of Appeal upheld Mencap’s appeal, the scheme became somewhat redundant until the Supreme Court’s decision is made.
The sleep-ins case has become an important topic for the social care sector.
The uncertainty puts increased stress and pressure on providers, and the back-pay bill is still unaffordable for most. But at a time when the sector is keen to improve the perception of care and encourage people to see it as a skilled and valuable profession, what would be the better outcome?