Supreme Court delivers judgment on sleep-in shifts

March 19, 2021

The verdict on the Royal Mencap Society (Respondent) v Tomlinson-Blake (Appellant) case has been delivered today.

The Supreme Court has handed down its judgment on the sleep-in shifts case for social care, in favour of the Royal Mencap Society (Respondent). The Supreme Court has upheld a 2018 Court of Appeal decision that employees are only entitled to the National Minimum Wage (NMW) for sleep-in shifts when they are awake and carrying out duties.

Anthony Collins Solicitors represented Care England in its intervention on the Mencap vs Tomlinson-Blake case at the Court of Appeal.

Speaking on today’s Supreme Court judgment for sleep-in shifts, Matthew Wort, partner at Anthony Collins Solicitors, said, ‘This case was not about what care workers should be paid. Instead, it focused on the interpretation of national minimum wage regulations, with the law and previous Government guidance making clear that carers are not working while asleep.

‘Today’s judgment puts an end to many years of uncertainty. It should be seen as a line in the sand, with the focus now on ensuring changes are made in how workers are remunerated to ensure appropriate pay for time asleep.’

Matthew Wort acknowledged in his reaction that while this judgment removes a serious risk for providers, the long-term stability ‘hangs in the balance'.  Wort also reiterated the thoughts of the social care sector – that the disparity between social care and healthcare needs to end and said the Government is ‘failing the sector.’

Edel Harris, Chief Executive of the Royal Mencap Society said, 'Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400 million. Sleep-ins are a statutory care service that should be funded by Local Authorities, and ultimately Government. It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector that is already underfunded and stretched to breaking point. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered.

'We believe that the legislation covering sleep-in payments is out of date and unfair and we call on Government to reform it. More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better. It is disappointing that there is still no plan for social care reform.'

The Voluntary Organisations Disability Group (VODG) is calling on the Government to instruct the Low Pay Commission to establish a fair rate of pay for social care workers who provide overnight support following today’s Supreme Court decision on ‘sleep in’ shifts.

Historically, most care workers received a flat rate payment for each sleep-in shift – typically around £35. This was topped up by pay at the NMW hourly rate when they were awake and providing care or support. VODG has highlighted for many years that official guidance, inconsistent HMRC approaches and a range of legal decisions, has created confusion around appropriate payment arrangements for sleep-in shifts.

Dr Rhidian Hughes, chief executive of VODG, said, ‘Clearly, there are no winners or losers in this case. While the judgment provides some welcome clarity to this issue, there is still significant uncertainty that can only be resolved by the Low Pay Commission carrying out a consultation and review, and for the Department of Health and Social Care to bring forward a workforce strategy for the social care sector.

‘We are concerned about potential knee-jerk reactions of local authority commissioners up and down the country which could see funding reduced, and therefore the pay of staff affected.

‘The ad hoc arrangements of the past must be replaced with a new reality – one that provides sustainable, clear, and fair funding arrangements for sleep in shifts. We cannot have a postcode lottery in pay for social care workers doing such important work. Anything that worsens retention will only impact on disabled people who rely on social care services and lower the quality of care.’

Professor Martin Green OBE, Chief Executive of Care England, said, ‘After a lot of uncertainty it is useful to have this ruling from the Supreme Court. Our staff are our best resource and need to be valued as such.  This is all part of the broader picture of the much-needed reform of the adult social care sector which we will continue to press the Government on.’

Responding to today’s Supreme Court ruling on sleep-in pay for residential care workers, Mark Milton, Chief Executive of Ambient Support, said, ‘There would have been a severe impact on our ability to continue to deliver quality care and support if the ruling had gone the other way - but this is not a victory for employers like us.

‘We support any move to deliver fair and equitable pay for social care staff for the brilliant work they do. But local authorities and the NHS have to give us the funding for that pay – and Government has to give them the means for that funding.

‘This is only one of many critical issues that need to be resolved to keep the social care system from collapse. We will continue to work with others in the sector to voice our concerns and to press politicians to urgently resolve the crisis in the care system.’

Visit the UK Supreme Court website for more details on today's ruling.

Read our Into Perspective CMM feature for historic background on the case.

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