UK Care Givers Lose ‘Sleep-In Shift’ Pay

Care workers across the UK who have to sleep at their workplace they are needed are not entitled to the minimum wage for their whole shift, the UK Supreme Court has ruled.

The case was brought by Clare Tomlinson-Blake against the learning disability non-profit, Mencap.

The case sought to overturn a 2018 Court of Appeal ruling. The union, Unison, argued on her behalf that care staff should get the minimum wage for nightshifts, even if they are asleep.

If she had won, care providers feared an estimated £400m bill for back pay, which they said they could not afford.

Mrs. Tomlinson-Blake was paid by Mencap for a sleep-in shift between 10pm and 7am. Although she could sleep, she was expected to keep a “listening ear” out for the home’s residents and provide them with support if needed during the night.

Over 16 months, she was called on six times, receiving no extra money for the first hour she was called, although after that she was paid at the full day-time rate. A second case was brought by John Shannon, a care worker whose case was heard at the same time as Mrs. Tomlinson-Blake’s. His case against his former employers was also dismissed.

The Supreme Court concluded there was an exemption in national minimum wage legislation which applied to sleep-ins. The court’s written ruling, said that “sleep-in workers… are not doing time work for the purposes of the national minimum wage if they are not awake”.

In 2017 the Employment Tribunal found Mrs. Tomlinson-Blake used her “listening ear” and experience to know when she was needed – so she was “working” even when asleep. This meant she was entitled to an hourly minimum wage. But in 2018, the Court of Appeal ruled that “sleepers-in” were to be characterized as “available for work… rather than actually working”. This meant, “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”.

Edel Harris, chief executive of Mencap, said, “Support workers within Mencap and across the sector do an exceptional job. They are dedicated in their care for people with a learning disability and should be paid more.” But she added, “It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which 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.”

For more information on managing overnight shifts, download the myCheckIn fact sheet.