Update on payment for sleep-in shifts in social care: November 2018

Significant confusion has arisen because of the interpretations by the tribunals of the 2015 National Minimum Wage Regulations and 2015 and 2016 Government guidance on sleep-in payments. This frustrating lack of clarity has caused uncertainty in the provider market and a great deal of anxiety for care workers and those who receive care.

The LGA supports care workers being paid fairly for the work they do. Since 2016, we have highlighted to Ministers the likely consequences across the system should there be no Government funding to deal with historic, current and future higher costs from sleep-in payments.

Royal Mencap Society Court of Appeal Case

• The Court of Appeal has overturned the decision of the EAT in the case of Royal Mencap Society v Tomlinson-Blake.
• The Court held that workers doing sleep-ins were to be characterised for the purpose of the National Minimum Wage (NMW) Regulations as available for work rather than actually working, and so fall within the exception provided by regulation 32(2). Therefore, only time when the worker is required to be awake for the purposes of working would count for the NMW.
• The LGA successfully applied for permission to intervene in the Royal Mencap Society’s appeal. We emphasised that we support fair pay for all care workers, but the financial consequences for councils could be significant if the court decided that the law required sleep-in care workers to be paid the NMW for their entire shift in view of the significant funding pressures facing social care.
• Unison has applied to the Supreme Court for permission to appeal the Court of Appeal Judgment. We do not expect to hear whether permission appeal has been granted until early 2019, but it could be longer. If granted, any hearing would be some time after that.

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Update on payment for sleep-in shifts in social care: November 2018