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Into Perspective: The sleep-ins case

The Supreme Court has recently heard the latest appeal in the sleep-ins case, and is due to make its decision later this year. But what do we want for the outcome? How has the case progressed so far, and what could the impact of either outcome be? Our experts share their thoughts.

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.

Vital considerations

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?

Roles and responsibilities must be made clear

There are two major challenges faced by social care providers – and they have equal weighting – which will ultimately seal the fate of the sector in the coming years: workforce and funding. They are inter-dependent and a solution to one without the other is unsustainable, putting every provider in the country at risk. However, if you have a sustainable workforce and a viable income, we know that you will be okay going forward – with a blessing of a good CQC report.

With this focus in mind, the debate around the impact of sleep-in staff pay is one which must be considered carefully. The first thing to be clear about is, what is the purpose of a sleep-in staff member at any given time? The answer to that question will bring us to a framework that should assist with an outcome which is fair and equitable for all. This debate inevitably centres around what is deemed to be fair.

The roles and responsibilities of a sleep-in care worker must be clear from the outset. The time that they have to be ‘available’ as opposed to be ‘on shift’ needs to be clear, because the purpose of the sleep-in is to provide additional support, when needed, in exceptional circumstances. That said, the fact that they are away from their home deems them to be ‘on shift’, so the question is, does a partial agreed payment recompense for the inconvenience of being on-site, based on the premise that it is unlikely that they will be disturbed from their sleep?

To date, local authorities have paid a set amount for sleep-in arrangements within their contracts and any deviation from this will have a fundamental impact on the ability to employ sleep-in care workers for a night service that is based on ‘peace of mind’. The impact of any change to this will make contracts undeliverable, as the client may not need a waking care worker during the night.

Central to this is can a care worker be paid for sleeping if it is deemed that they are working? In the event they are woken up and required to work, they should definitely be paid the National Living Wage in addition to the agreed sum, but if they are paid the same as waking staff for sleeping, why would they not be expected to carry out waking duties?

Nadra Ahmed OBE, Chair, National Care Association

 

Clarity cannot come soon enough

The ongoing sleep-in cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad were heard by the Supreme Court in February but the social care sector will have to wait a little longer for the outcome, as the Judgment is not expected until the summer.

Whether workers are entitled to be paid for time spent actually working during these sleep-in shifts or the full duration of the shift, including sleeping time, will be a landmark decision for the care sector, whatever the outcome.

The outcome of the case is not easy to predict. If the appeal is successful, an already stretched sector will have greater financial exposure with increased staffing costs, claims for up to six years of back pay from staff who have already brought claims and potential HMRC fines, with an estimated cost of £400m to the wider sector. It is reported that Mencap, on its own, could face arrears of pay of up to £20m. Given the potential costs there is real concern around the potential impact on the ongoing sustainability for many providers operating in the sector. It is not inconceivable that some providers could face insolvency particularly when funding cuts are already affecting the sector. One possibility is that the Government will re-open the social care compliance scheme to assist providers to make any arrears of pay that fall due as a result of the Supreme Court’s decision.

If the appeal is not successful, it may create further recruitment challenges in an industry which is already desperately short of workers. Staff need to be recognised for the valuable contribution that they make to this sector to ensure that an already stretched industry can not only recruit but can retain and develop an established and valued workforce for the work that they do. This is particularly important given recent comments from the Government that they are part of a “low-skilled” workforce whose employers may find it more difficult to attract migrant workers following recent announcements regarding the Government’s post-Brexit immigration policy.

Clarity on this important issue is essential and cannot come soon enough. More important will be the need for commissioners and providers to be working together as collaboratively as possible for the benefit of the entire social care sector. Watch this space.

Jodie Sinclair, Employment Partner, Bevan Brittan LLP

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