Appeal court decides in favour of Mencap over sleep-ins

The Court of Appeal judgement in the case of backdated sleep-in liabilities has decided in favour of Mencap – that it is only time spent awake and working which is counted during a sleep-in shift.

The successful appeal, in which Care England was an intervener, now gives clarity regarding historic liabilities for sleep-in shifts.

The court decided that sleep ins fall into the exception as being ‘only available for work’ according to Regulation 32 and as such the national minimum wage would only be payable when the person was awake and working and not while asleep.

Care England said the judgement means providers can be confident in having the correct framework within which to make decisions on remuneration of such shifts provided there is no Supreme Court Appeal.

Professor Martin Green (pictured), Care England chief executive, said: ‘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 also called on the status of the national Social Care Compliance Scheme and the obligations of providers registered within it to be clarified as soon as possible.

Emma Burrows, partner at Trowers & Hamlins, said the judgement will come as a great relief to care providers who have been facing an ever-increasing pressure on budgets.

She said: ‘The practical effect of the case will differ for each provider.

‘Those who have already started paying may choose to stop paying staff for sleep ins now, which may result in further pressure on retention of staff in a sector where turnover is generally very high. Many employers may seek to recover back pay that they have already paid.

‘Many care providers have joined the Social Care Compliance Scheme with HMRC. They will now have to decide how to respond to that. Under the scheme care providers had until 31 March 2019 to make back pay payments, which are conservatively estimated at £400m. There is sense in care providers now withdrawing from the scheme, if it continues.’