Sleep-in care workers lose final appeal over minimum wage

Care workers who slept overnight at their workplace were “available for work” rather than “working” and so were not entitled to be paid the national minimum wage for the whole of their sleep-in shift.

Joanne Stronach Director & Head of Employment and HR reports on this recent case.

That was the decision of the Supreme Court in two cases that have major implications for residential care homes.

Care workers who sleep overnight in or near a care home while on duty are often paid a flat fee, typically around £30.

Claire Tomlinson-Blake, who worked for Mencap with vulnerable adults in Yorkshire, challenged the flat fee payment, arguing that she was required to use a “listening ear” even when she was asleep.

She said she was technically working so was entitled to the minimum wage.

The Employment Tribunal ruled in her favour.

The government then told the charities they must reimburse their past and present workers for up to six years’ worth of underpayment, a bill that could have run to £400m.

The back payments, as well as the obligation to increase current wages, left a huge burden on the charities and many care homes said they would have to close.

The Mencap case, and a similar one involving Care England, went to the Court of Appeal, which ruled that care workers on sleep-in shifts were ‘available to work’ rather than working.

They were not entitled to minimum wage unless they were awake for the purpose of working.

The Supreme Court has upheld the decision with a ruling that brings an end to the case.

The Supreme Court said there was an exemption in national minimum wage legislation which applied to sleep-ins. Giving the court’s written ruling, Lady Arden said that “sleep-in workers… are not doing work for the purposes of the national minimum wage if they are not awake”.

If you would like more information about the issues raised in this article or any aspect of employment law please contact Joanne on 01228 516666.