Union and LGA comment on care workers' sleep-in shift judgement

By Agencies
July 14, 2018

On 13 July 2018, the Court of Appeal reversed an Employment Tribunal judgment on the pay of care workers who work overnight 'sleep-in shifts' in residential care homes.

The ruling relates to workers who had been paid a flat rate for such shifts, below the minimum wage. An Employment Tribunal ruling, made in 2016 and upheld at appeal last year, ruled that Clare Tomlinson-Blake, who was eployed by Mencap, should have been paid the full minimum wage during sleep-in shifts. 

This could have cost the sector an estimated £400 million in back-dated pay and £200 million a year from 2020. Mencap and Care England, the representative body for social care providers, went to the Court of Appeal in March to challenge this ruling.

Commenting on the Court of Appeal's decision, Cllr Izzi Seccombe, Chairman of the Local Government Association’s Community Wellbeing Board, said, “This ruling will come as a relief to care providers and councils because it removes considerable uncertainty and a potential considerable unfunded burden on top of already significant financial pressures on the adult social care sector.

“We now need urgent clarity on all enforcement action for back payments when the National Minimum Wage wasn’t paid to ensure that no provider will face further action.

“As we said in our submission to the court, we strongly support care workers being paid a fair wage for their valued work, but if this appeal was upheld it would have increased the risk of a sinkhole in adult social care.

“However, today’s decision does little to ease the financial crisis facing social care. There is a £3.5 billion funding gap facing adult social care by 2025. This gap needs to be fully funded by government so that providers can plan with more confidence to ensure all people can receive reliable, high quality, personal care and support when and where they need it.”

UNISON, the trade union which represents many care workers, said the legal decision not to count sleep-in shifts as working time is wrong, and is at odds with legal precedents and a common sense understanding of what counts as work. The union argues that most care workers on sleep-in shifts aren’t sleeping. Most nights they have to get up to care for people, are on constant call, and are not free to come and go from their place of work.

Commenting on the case, UNISON general secretary Dave Prentis said, “This judgment is a mistake, but let’s be clear where the fault lies. The blame for this sorry state of affairs that’s hitting some of the country’s lowest paid workers must be laid at the government’s door.

“Ministers are so consumed by Brexit that they’re ignoring huge problems around them. Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly.

“Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people. With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can.

“That’s why it’s such a disgrace that workers have been paid a pittance for sleep-ins – with some getting just £30 for a ten-hour shift.

“As a society we should value care staff and the work they do, but unfortunately we don’t. After this judgment who could blame care workers for leaving in their droves.”

As a result of the judgment, UNISON is considering an appeal to the Supreme Court.

* UNISON https://www.unison.org.uk/

* Local Government Association https://www.local.gov.uk/

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