Joanne Stronach, Head of Employment & HR, considers the recent Court of Appeal cases regarding sleep in workers.
The decision by the Court of Appeal in two recent cases – Royal Mencap Society v Tomlinson Blake and Shannon v Jaikishan and Rampersad (trading as Clifton House Residential Home) 2018 EWCA Civ 1641 – will have major implications for residential care homes.
The Court of Appeal decided that care workers sleeping 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.
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 another similar one, 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.