Court cases brought by employees required to "sleep-in" have proved controversial. Two were subject to a Court of Appeal ruling in July. This itself is likely to be appealed. The care sector is in the meantime in limbo.
MenCap v Tomlinson-Blake
In the first case Ms Tomlinson-Blake was employed by Mencap to care for vulnerable adults. She was occasionally required to sleep-in at their home in case her assistance was required during the night. She claimed payment for her sleep-in shifts, not just when she was working but when she was asleep. The Employment Appeal Tribunal (EAT) upheld her claim. Mencap appealed.
Shannon v Rampersad
In the second case, Mr Shannon lived on the top floor of a care home. He agreed to always be home between 10pm and 7am in case the night staff required assistance. He received a small payment and paid neither rent nor services for the flat. He too claimed payment for the entirety of his sleep-ins. But the EAT dismissed his claim and he appealed.
In the aftermath of the Mencap case the Government published guidance to the care sector: sleep-ins should be paid in full, and payments of back pay to workers would be required (thought to total £400m). There is anecdotal evidence that charities and care providers laid off workers or sought voluntary redundancies in order to put themselves in the position where they could afford these payments.
The appeals of the Mencap and Shannon cases were heard together and centred on the interpretation of the National Minimum Wage Regulations (NMWR). The Court held that although Ms Tomlinson-Blake and Mr Shannon were “available” for work when on sleep-ins they were not “working”. The Court said the judgment was in accordance with a strict interpretation of regulation, not policy, and declined to consider submissions from Care England and the Local Government Association.
Employers breathed a sigh of relief. Perhaps their liability for up to six years back pay had vanished? Could they now stop making payments to employees for sleep-ins when they were asleep? But Unison sought leave to appeal, and then Mencap lodged an objection to Unison’s application. The outcome is as yet unknown.
In August the Nursing Times reported that the number of elderly needing round-the-clock care by 2035 would double to 446,000. This is in addition to other vulnerable adults and children. Mencap believes time spent sleeping-in should indeed be covered by NMWR and ultimately should be funded by government. But states, in the meantime, that the sector cannot afford to meet claims for back pay; businesses would fail, the vulnerable would suffer.
For help or advice on this or other employment law matter, please speak to Emma-Louise Hewitt on 0808 166 8827.
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