A UK Supreme Court judgment last week ruled carers who sleep at their workplaces are not entitled to receive the national minimum wage. In a landmark case, the UK’s highest court decided to throw out an appeal by the former Mencap support worker Claire Tomlinson-Blake.
Lawyers representing Mrs Tomlinson-Blake had argued that carers who work sleep-in shifts were effectively operating ‘like a nightwatchman’ and should be paid the national minimum wage for the entirety of their sleep-in shifts, as opposed to a flat rate of a lesser amount.
However, the Supreme Court unanimously dismissed the appeal. And in a later judgment, Lady Mary Arden said a ‘sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for national minimum wage purposes’. She added that the fact that the worker was required to be present during specified hours was ‘insufficient’ to lead to the conclusion they were working.
The decision has now prompted calls for the government to take action, not just in relation to laws covering sleep-in payments, but also the care sector as a whole. Commenting on the case, our employment expert Ella Bond said the ruling is likely to have wide repercussions for those working in the care sector and their employers.
Ella explains: ‘The ruling will come as a real blow to workers from the care sector who are having to spend their nights on alert and, in many cases, away from their home in order to provide essential care to vulnerable individuals. Conversely, there will be a sense of relief for the care providing companies which would otherwise have stood to face claims for back pay dating back up to six years.
‘However, employers should not become complacent. The national minimum wage is still payable for the hours the care staff work when awake during the night and employers should have effective systems in place to monitor that time. If they fail to do so accurately they would be liable not only to pay the deficit amount but also risk having to pay a maximum penalty of £20,000 per underpaid worker. They could also be publicly named and shamed and face company director bans for up to 15 years. In addition, employers looking to use this ruling to reduce current rates of pay for their sleep-in workers will need to tread very carefully, as such changes may give rise to employment tribunal claims, as well as adversely impacting working relations. Professional advice should always be sought from the outset when considering any such changes.’
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