SLEEP-IN SHIFTS | Carers granted right to appeal

As the protracted legal battle between Mencap and UNISON continues, the Supreme Court has now granted carers the right to appeal its earlier decision regarding pay for sleep-in shifts.

The story so far

A 2017 tribunal ruling concluded that staff who work sleep-in shifts should be paid the National Minimum Wage for the hours they are asleep. Before this, employers like Mencap paid care staff a flat-rate “on call” allowance at below the National Minimum Wage for sleep-ins. In one case, a support worker was paid a total of £29.05 for a nine-hour sleep-in shift, working out at just £4.30 per hour.

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Estimated cost to repay carers

As part of the ruling, social care providers would have to repay their carers six years’ back pay, amounting to an estimated £400 million, a decision which threatens to add to the weighty financial burden on care providers.

John Cowman, director of services for Mencap, argued that having to pay sleep-ins at the National Minimum Wage would plunge the already overstretched sector into “a real and potentially overwhelming funding crisis that will affect the wellbeing of hundreds of thousands of disabled people”.

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On the opposite side of the debate, Dave Prentis, general secretary for UNISON, called current pay practices a “disgrace”, arguing that “sleep-in shifts involve significant caring responsibilities, often for very vulnerable people”. He pointed out that “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”.

However, the 2017 ruling was later overturned in July 2018, a decision Dave Prentis branded a “mistake”. Many care sector employers were unable to maintain their flat “sleep rate” in compliance with their National Minimum Wage obligations. UNISON immediately expressed an intention to appeal.

"Until the law is settled on this issue – and further funding is made available...there will continue to be significant staffing challenges in providing care to those who need it."
Musab Hemsi, Principal and Head of Care, Ellis Whittam

What’s the latest?

In what seems to be a never-ending legal battle, the Supreme Court has now granted UNISON the right to appeal and once again argue for sleep-ins to be paid at the National Minimum Wage.

While this is welcome news for care sector staff, who are hoping that this will put an end to current pay practices once and for all, Musab Hemsi, Employment Law Principal and Head of Care at Ellis Whittam, identifies the continuing uncertainty caused by this latest twist.

“Care sector employers will again be left scratching their heads about how to respond to the news from the Supreme Court. Until the law is settled on this issue – and further funding is made available for service providers to ensure that viability, standards of care and profitability are not destroyed by ever-increasing compliance parameters – there will continue to be significant staffing challenges in providing care to those who need it. The Government will also need to publish some updated guidance around its Social Care Compliance Scheme, which many care providers subscribed to in the hope of securing some certainty around this clouded topic.”

However, a final decision is unlikely to be made any time soon, as a date for the hearing has not yet been set – and is not expected to be until October 2019 at the earliest.

What happens now?

Whatever the outcome, it seems there is no solution that will satisfy both parties. In an ideal world, care providers would be able to pay staff fairly without compromising the service they provide; however, with chronically high levels of demand and underfunding, this is currently not possible.

If you’re in need of expert guidance, Ellis Whittam’s experienced Employment Law Advisers from our Care Team can help. Call 0345 226 8393 for advice and support.

Keep up to date with care sector news

Director of Legal Services

James Tamm

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