Update on payments for sleep-in shifts in social care: February 2019

The purpose of this briefing is to update councils on latest developments regarding payment of overnight sleep-in shifts in adult social care. Although this briefing focuses on adults, the issue is also relevant to children’s services.

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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 Sociey 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.
  • In November 2018 the Department for Business, Energy and Industrial Strategy (BEIS) published updated guidance on calculating the NMW for sleep-in shifts. This takes account of the Court of Appeal ruling that providers do not have to pay the national minimum wage for sleep-in shifts.
  • HMRC’s ‘social care compliance scheme ’, which was set up in November 2017 to help employers identify sleep-in back payments, has not been suspended and employers remain uncertain about their status in relation to the scheme.
  • On 13 February 2019, the Supreme Court granted Unison leave to appeal the Court of Appeal judgment. We have been informed that the Supreme Court hearing will not take place before October 2019, but the actual timetable is yet to be confirmed.

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Update on payments for sleep-in shifts in social care: February 2019