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Ruling on pay for care workers who sleep at workplace

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Care workers who are paid to sleep at their workplace in case they are needed overnight do not qualify for the minimum wage, the Court of Appeal has ruled.

The judgement means that sleep-in staff will not be entitled to years of backpay to top up past earnings to the minimum wage.

“Many hardworking care workers were given false expectations of an entitlement to back pay”

Derek Lewis

A tribunal decision in April last year had ordered care providers to fund six years’ worth of back pay for sleep-in staff, which could have cost providers more than £400m.

But in a long-awaited judgement the Court of Appeal has ruled that care providers have no liability for back pay.

The judges said that carers were only entitled to the minimum wage when they were “required to be awake”.

In contrast, sleep-in staff were characterised as “available for work” rather than “actually working”, the judge said.

“We welcome the Appeal Court ruling and hope we can now move forward”

Martin Green

The charity Mencap, which won the appeal, argued that funding backpay was unaffordable for the sector and could have forced smaller employers out of business.

In the past, care workers who looked after people with serious learning disabilities overnight were often paid a flat fee of around £30. This reflected the fact that they might be sleeping for part or most of their shifts.

Today many providers now pay the minimum wage for sleep-in shifts but say they are unable to afford to backdate this for previous years.

Unison, the union representing care home workers, called the Court of Appeal’s verdict “a huge mistake”.

Dave Prentis Unison

Dave Prentis

Dave Prentis

Unison general secretary Dave Prentis said that sleep-in shifts involved “significant caring responsibilities” often for very vulnerable people.

“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,” said Mr Prentis.

“That’s why it’s such a disgrace that workers have been paid a pittance for sleep-ins with some getting just £30 for a 10 hour shift,” he said.

He said that the government was ultimately to blame by ignoring the “crisis” in social care.

“As a society we should value care staff and the work they do but unfortunately we don’t. After this judgement who could blame care workers for leaving in their droves,” said the union leader. Unison is now considering whether to appeal to the Supreme Court.

“It’s such a disgrace that workers have been paid a pittance for sleep-ins”

Dave Prentis

Mencap welcomed the decision, saying it had removed uncertainty about how the law applies to sleep-ins.

But Derek Lewis chair of the Royal Mencap Society said it had been a difficult case to bring.

“Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed,” he said.

They had brought the case reluctantly as they supported the aim of paying sleep-in staff higher wages, he said. But the issue of back-pay could have bankrupted the sector, he argued.

“We did not want to bring this case,” he said. “We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and government enforcement action.”

He said it was clear that care workers needed “a better deal” with many among the lowest paid in society.

Mr Lewis said: “We and many other providers have been paying for sleep-ins at a higher rate for over a year now and we intend to continue despite the Court’s decision.

“We now call on government to fulfil its responsibilities by legislating so that all carers are entitled to this and their employers are funded accordingly,” he added.

prof martin green index

prof martin green index

Martin Green

Professor Martin Green, chief executive of Care England, which represents independent care providers, welcomed today’s ruling.

“We welcome the Appeal Court ruling and hope we can now move forward, without a huge back pay liability hanging over the sector and threatening the ongoing care of thousands, to ensure we focus on getting social care services funded properly for the future,” he said.

In a statement, the National Association of Care & Support Workers said: “Most care workers are required to be at work in some instances for up to 12 hours a night in an uncomfortable environment often comprising of an office and a sofa bed.

“Care workers very often can barely get an hour of uninterrupted sleep due to the anticipation of being awoken to attend to the person they care for or not being able to fall back asleep after being awake. It is therefore fair that a sleep-in shift is considered as a working hours shift,” it said.

“It has always been NACAS position, that the expectation on employers to pay for years of unfunded sleep in shifts was unrealistic, with a huge consequential negative impact on an already fragile industry. However, it is our continued belief that care workers are entitled to be paid a National Minimum Wage for time spent at work,” said the association.”

It added: “We have previously called on the UK Government to show leadership on this matter, to ensure that care workers get a fair deal and that employers are supported in the process. Therefore, we would like to call on the newly appointed Secretary of State Rt Hon. Matt Hancock and the Minister of Social Care Rt Hon Caroline Dinenage to show leadership by initiating dialogue with care workers on this issue as a matter of urgency to ensure that all care workers get a fair and better deal.”

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