Supreme Court sleep-in shift ruling could lead to pay cuts, charity warns

21 Apr 2021 By Jessica Brown

Mencap calls for ‘urgent’ action to guarantee care workers minimum wage following concerns the ruling could lead to other providers cutting costs

Charity Mencap has warned that a recent landmark court ruling on sleep-in shifts could lead to some care providers cutting wages, and has said action is needed “urgently” to reform the rules to guarantee sleep-in workers the minimum wage for the entirety of their shifts.

Last month, the charity successfully defended a claim at the Supreme Court against a sleep-in worker who argued they were entitled to the minimum wage for the duration of their shift.

However, in an open letter to the prime minister, written jointly with union Unison, the charity said the ruling was a “huge blow to care workers” and warned the judgment could be seen as an “opportunity to cut costs, including wages” by some providers.

The charity added that it had been paying hourly minimum wage rates for sleep-in shifts since 2017 and defended the case because of the “huge back-pay bill facing the care sector” if the ruling had gone the other way. But, while it had no plans to reduce staff pay as a result of the court’s ruling, it cautioned that other providers might.

“The result could be even fewer recruits joining a sector already suffering from thousands of vacancies,” the letter said.

Last month, the Supreme Court ruled that two employees, one who worked for Mencap and another for Surrey-based care home Clifton House, were not entitled to count their sleep-in shifts as ‘time work’ or as part of their salaried hours unless they were awake for the purpose of working.

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In particular, the court cited a recommendation first made in 1998 by the Low Pay Commission (LPC) and accepted by the government as part of the National Minimum Wage Regulations 1999 that sleep-in workers should receive an allowance instead of the minimum wage unless they are awake for the purposes of working. This recommendation was also included in the National Minimum Wage Regulations 2015.

In the letter, both Mencap and Unison – which represented the workers in the case – also called on the LPC to “reassess the status of sleep-in shifts [so that] the entirety of these should be treated as ‘working time’”. The LPC still advises the government on the national minimum wage.

The two organisations also called for better funding in the sector to allow providers to offer a fairer wage that better reflected the skilled and essential nature of care work.

Commenting on the letter, Edel Harris, chief executive of Mencap, said care workers did “vital, highly skilled work” but were still among the lowest paid in society. 

“Boris Johnson promised to fix social care – paying fairly for overnight support is the first step,” she said. “Ultimately, the government’s reforms must include properly funding social care and improving pay to create a world-class social care system we can be proud of.”

Dr Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group, said that while last month’s judgement had provided some welcome clarity on the issue, there was still “significant uncertainty” that could only be resolved by the LPC carrying out a consultation and review. He also called for the Department of Health and Social Care to bring forward its workforce strategy for the social care sector.

“We are concerned of potential knee-jerk reactions of local authority commissioners up and down the country which could see funding reduced, and therefore the pay of staff affected,” Hughes said. “Social care providers, who were already operating in a challenging financial landscape before the pandemic, now face significant new financial, workforce and health and safety pressures.”

He added that care workers remained “on the frontline of the pandemic” and deserved fair pay for their work.

This was echoed by Ellie Hibberd, partner at Stephens Scown, who noted that the sector already faced huge challenges in recruitment. “Not paying for sleep-in shifts risks the job becoming even less attractive and without a workforce willing to take on these sleep-in shifts, the care given to those most in need will suffer drastically,” she said.

“Both the government and the Low Pay Commission have a key part to play in how workers within the care sector are paid following the Supreme Court’s decision,” Hibberd added, noting that historic reports from the commission played an important part in the Supreme Court’s rationale.

Siobhan Mulrey, senior associate solicitor at Irwin Mitchell, highlighted that many organisations in the care sector were already paying the minimum wage for sleep-in shifts, and had no intention of reducing this. 

“However, having this enshrined in legislation as Mencap and Unison have jointly recommended will prevent providers and local authorities from seeing the judgment as an opportunity to cut costs,” she said.

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