Care providers are hoping to overturn a tribunal ruling, which they say has plunged the sector into deeper financial crisis by forcing services to pay more for sleep-in shifts.
The controversial Employment Appeal Tribunal (EAT) ruling, handed down last year, found care workers were entitled to the minimum wage for sleep-in hours rather than the fixed rate most had received to date.
“We argue for a comprehensible, predictable, and workable interpretation of the sleep-in-shift regulations”
Providers say this decision has left the sector facing a bill of £400m in back pay alongside a £200m increase in annual costs from 2020 onwards, threatening the viability of already struggling services.
Care England, which represents independent providers of adult social care providers, has since won the right to challenge the employment ruling in the Court of Appeal with a hearing due to take place next month.
The move is the latest twist in the complex row over whether or not workers can be said to be working while they are asleep.
Mencap was the subject of the EAT case in May 2017, which ruled a care worker should receive the National Minimum Wage for sleep-in hours as part of care she provided for two vulnerable adults.
“Surveys have shown that, in practice, on average only 1% of time in sleep-in-shifts is spent working”
In the light of the case, the government established a Social Care Compliance Scheme, under which employers have set deadlines to review and identify what they owe to workers and pay any outstanding sums.
However, Care England and others say making cash-strapped providers pay or face enforcement action threatens the viability of services.
Care England chief executive Professor Martin Green said the outcome of the forthcoming appeal, due to be heard from 20 to 21 March, had huge implications for the sector as a whole.
“If the existing decision of the Employment Appeal Tribunal is upheld it would be a watershed moment for the sector, with profound affects for the viability of residential domiciliary and supported care which supports 1.2 million vulnerable people across the country,” he said.
“We argue for a comprehensible, predictable, and workable interpretation of the sleep-in-shift regulations that do not give rise to the potentially crippling multi-million pound consequences for the sector,” he said.
Professor Martin Green
“They should enable providers and their workers to deliver the best care possible,” added Mr Green.
Matthew Wort, partner at Anthony Collins Solicitors, which is acting on behalf of Care England, said his team would be presenting new arguments not considered in the case to date.
“Surveys have shown that, in practice, on average only 1% of time in sleep-in-shifts is spent working,” he said.
“The intention of parliament from the introduction of the National Minimum Wage Regulations was always that people carrying out sleep-ins would only be paid when they are awake and working,” he said.
“We are hopeful that the Court of Appeal will be persuaded to interpret the legislation in that way,” he added.