The Supreme Court will begin examining whether residential care workers who ‘sleep in’ are entitled to the national minimum wage (NMW) for time that is not spent performing a specific activity.
The hearing, which is expected to last until tomorrow (Thursday 13 February), will be considering the Unison-backed case taken on behalf of care worker Clare Tomlinson-Blake.
The appellant argues sleep-in shifts should count as working time and be paid at least hourly minimum wage rates.
In August 2018, the Court of Appeal decided in favour of Royal Mencap Society that it is only time spent awake and working which is counted during a sleep-in shift.
The appeal court held employees were not entitled to the NMW for the full duration of their sleep-in shift, which was as a relief to care providers.
However, in February last year, the Supreme Court granted permission for an appeal against a 2018 judgment.
Matthew Wort, a partner at Anthony Collins Solicitors, helped Care England in its intervention on the Mencap vs Tomlinson-Blake case at the Court of Appeal.
He said: ‘The Supreme Court case on sleep-in shifts is an opportunity to finally put to bed a three-year legal battle and the related uncertainty for care providers across the country.
‘This case is not about what care workers should be paid, rather it is focusing on the interpretation of NMW regulations. The law appears to make clear that employees are not working while asleep and government guidance in place for many years backed that up.
‘It is not the Supreme Court’s role to decide on public policy grounds what the law should be, but to interpret the legislation to reflect the intention of Parliament when the regulations were introduced. For that reason, I consider it should accept that time spent asleep during a sleep-in shift does not attract the NMW. However, should the Supreme Court agree that care workers are not entitled to NMW while asleep, there will still need to be a change in how workers are remunerated. This is to ensure all workers are paid appropriately for time asleep.’
If the Supreme Court decides the law does require NMW payments to care workers while they are sleeping, it will mean care providers having to assess their payments to workers over the last six years with potential of HMRC enforcement action against them.
‘Care providers should be compensated for the shortfall in funding to cover any historic liabilities which may be created by the Supreme Court judgement,’ Wort added.