Care workers sleeping on overnight shifts should get minimum wage, Supreme Court told

Carers who have to sleep at their workplace in case they are needed overnight are ready to work and should be paid minimum wage for their whole shift, Supreme Court justices have heard.

In a case that could cost the UK care industry billions if it is decided in favour of workers, lawyers told a panel of five judges in London that carers who work so-called sleep-in shifts are “like a nightwatchman”.

The court is considering a challenge by Claire Tomlinson-Blake, a Mencap support worker in the East Riding of Yorkshire, against a Court of Appeal ruling in July 2018.

Three judges allowed an appeal by the Royal Mencap Society against an earlier tribunal decision, concluding that carers were only entitled to minimum wage when they were required to be awake for work – and not while asleep.

Sean Jones QC, representing Mrs Tomlinson-Blake, told the Supreme Court that, during a “good shift”, carers in this situation do not have to do anything.

However, he added: “But their job … is to be there to identify when a task arises and to identify who is the person responsible for dealing with it.”

Mr Jones said those in Mrs Tomlinson-Blake’s situation were getting less than minimum wage for the shifts they work, and that being paid the minimum hourly rate is “not a path to riches”.

The Court of Appeal heard Mrs Tomlinson-Blake received a salary for her full-time job helping vulnerable adults living in their own homes, and sometimes had to work a sleep-in shift between 10pm and 7am.

For those shifts she was paid an allowance of £29.05, which included pay for an hour’s work.

If she was woken in the night and had to work for more than an hour, she would receive extra pay for the time worked.

But the Employment Tribunal found she used her “listening ear” and her experience to know when she was needed, and was “working” even when she was asleep.

The tribunal said she was entitled to receive an hourly minimum wage, which would have been more than £60 per shift, a decision upheld by the Employment Appeal Tribunal (EAT) last year.

However Lord Justice Underhill, sitting with two other senior judges, said: “For the reasons which I have given I believe that sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working and so fall within the terms of the sleep-in exception.

“The result is that 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.”

Mrs Tomlinson-Blake’s appeal is being opposed by Mencap.

John Shannon, a Surrey care home worker who failed to convince the Employment Appeal Tribunal that he should have been paid the minimum wage for shifts when he was “on call”, is also bringing an appeal – which is resisted by his former employees

Following the Court of Appeal ruling, Care England – the body that represents independent care providers – said the case could have cost the sector £400 million in backdated pay and £200 million a year from 2020 if the court had ruled workers should be paid the minimum wage.

The Supreme Court hearing is due to conclude on Thursday.

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