The Court of Appeal judgement in the case of Mencap v Tomlinson-Blake was made on Friday 13th July, in the case of backdated sleep-in liabilities. The Court Of Appeal stated that that the National Minimum Wage (NMW) does not apply to sleep-in shifts unless the worker is awake for the purpose of working.
The relevant text on this by the Lord Justice is as follows:
“For the reasons which I have given I believe that sleepers-in, in the sense explained at para. 6 above, are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 32, rather than actually working, within the meaning of regulation 30, and so fall within the terms of the sleep-in exception in regulation 32 (2); and we are not bound by authority to come to any different conclusion. The result is that the only time that counts for NWM purposes is time when the worker is required to be awake for the purposes of working.”
This ruling means that care providers have no liability for back pay.
The appeal was brought by the learning disabilities charity Mencap, supported by Care England. Approximately 200 local and national charities were set to be liable for the back pay ruling.
The impact of this decision should not be underestimated, as it provides short-term financial stability at a time when budgets are being constantly squeezed and care providers had a potential £400m sleep-in shift back pay to settle.
Mencap's Statement (released on Friday 13th July 2018)
Derek Lewis, Chair, Royal Mencap Society said:
“The Court of Appeal has today handed down its judgement in two cases, one of which involves Royal Mencap. These are representative of many similar cases in the care sector. The Court’s decision has removed the uncertainty about how the law on the National Living Wage applies to sleep-ins. The prospect of having to make large unfunded back payments had threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their carers.
“Many hardworking care workers were given false expectations of an entitlement to back pay and they must be feeling very disappointed. We did not want to bring this case. We had to do so because of the mayhem throughout the sector that would have been caused by previous court decisions and Government enforcement action, including serious damage to Mencap’s work in supporting people with learning disabilities.
“What is clear though, is that dedicated care workers deserve a better deal. They work hard and support some of the most vulnerable people in society, but many are among the lowest paid. We and many other providers have been paying for sleep-ins at a higher rate for over a year now, and we intend to continue despite the Court’s decision. We now call on Government to fulfil its responsibilities by legislating so that all carers are entitled to this, and their employers are funded accordingly. We also call on Government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability is properly funded and its workers are paid what they deserve in the future.”
Care England believe that this ruling is the correct interpretation of the Law:
“The successful Appeal, in which Care England was an intervener, finally gives a clear steer with respect to 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 (NMW) would only be payable when the person was awake and working and not while asleep. This has always been our understanding and after years of uncertainty brought about by conflicting employment tribunal decisions and confusing Government guidance we can at last be confident providers have the correct framework within which to make decisions on remuneration of sleep in shifts provided there is no Supreme Court Appeal.
The Government must now act speedily to give direction to ensure the original regulations are now relied upon as the basis for HMRC and employers to act. The status of the national Social Care Compliance Scheme (SCCS) and the obligations of providers registered within it must be clarified as soon as possible.
Care England, the largest representative body for independent providers of adult social care, has long argued for better funding for social care, which is still of fundamental importance to ensure all social care employees can be paid more and that the sector can continue to attract and retain high quality staff.
Professor Martin Green OBE, Chief Executive of Care England says:
“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.” ”
You can read their full response here.
Cream Health Care believe many employers within the sector are going to continue to pay NLW until the Government releases further guidance on how the original regulations should be relied on; provided there is no Supreme Court Appeal. Where homes we supply continue to pay NLW, we will obviously pay all our staff at NLW for sleep-ins.
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