The Tomlinson Blake Employment Tribunal ruling that sleep-in shifts be paid the national minimum wage sent shockwaves through the care industry. Notwithstanding opinion on whether workers should be paid this, the prospect of a £400m back-pay bill combined with rigorous HMRC enforcement threatened the very foundations of the UK’s social care model generating immense uncertainty in the sector.
In this context, the Court of Appeal’s emphatic rejection of the decision in July prompted a sigh of relief and was hailed as Bright Line Decision by Walker Morris. Relief is short-lived unfortunately! Unison has now lodged an appeal against this decision in the Supreme Court. https://www.localgov.co.uk/Unison-appeals-against-reversal-of-400m-sleep-in-shift-ruling-/45810. Whilst the grounds for appeal are not generally available yet, it is unlikely that the Supreme Court will sit before Summer / Autumn 2019
So the mayhem continues, the government appears to be doing little https://www.civilsociety.co.uk/news/uncertainty-for-charities-with-government-quiet-on-implications-of-sleep-ins-ruling.html and the uncertainty is set to continue for another year at a time when "Care providers throughout the UK will now face further uncertainty at a time when consistency and continuity of the law is greatly needed." (Matthew Wort, Partner at Anthony Collins Solicitors
You can browse a series of articles and information sources from professionals in the field which are listed below. They give different perspectives but all of them call for clarity and proper funding; all express anxiety at the immense complexity caused by the situation with both Unison and Mencap laying blame firmly at the Government’s door.
Reading them a summary of the issues seems to be:
- Agreement on what a realistic payment for “Sleep-In” shifts should be. The Court of Appeal: “It would not be a natural use of language, in a context which distinguishes between (actually) working and being available for work, to describe someone as “working” when they are positively expected to be asleep throughout all or most of the relevant period.” V Unison: “‘Sleep-in shifts involve 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. 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 ten-hour shift.”
- The ruling is not a blanket ruling but must be considered on a case by case basis puts additional strain on the employment element of care businesses, defining ‘specific activities’ and providing clarity.
- Back payment? Have some workers been paid? What commitments and expectations are in place as a result of the original decision? Will these still be valid?
- Ongoing payments: Will those organisations now paying NMW feel they can stop? Some providers have parked paying out back pay and definitely moved back to flat rate payments going forward. What will be the impact of this decision on the already precarious recruitment situation and poor morale in care?
- Are commissioners now funding Sleep-Ins on a NMW rate on an ongoing basis? Will they continue pending the Appeal?
- What about the Social Care Compliance Scheme? This blog from James Taylor of the Access Group suggests it will continue but questions how it will operate.
- What are HMRC’s instructions about enforcement?
- What will the government do? “There needs to be a clear set of rules about exactly when NLW applies, and for government to fund these vital statutory services to avoid any future crises. Without this decisive action, our staff remain in an uncertain position with regards to their pay.”
James Sage from Royds Withy King in the Guardian: https://www.theguardian.com/society/2018/jul/17/back-pay-ruling-hands-care-providers-a-lifeline-but-what-happens-next
Walker Morris: Bright Line Decision: https://www.walkermorris.co.uk/publications/a-bright-line-decision-court-of-appeal-rules-in-mencap-sleep-in-shift-case/