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We continue to monitor the case of Royal Mencap Society v Tomlinson- Blake, otherwise known as “the Mencap case” following our series of recent articles on this complex dispute, which can be found here.

Following the Court of Appeal’s decision in favour of Mencap, care workers were only entitled to the national minimum wage when they were awake for working. Meaning that paying care staff flat rates for sleep-in shifts was determined to be lawful.

Unison, representing Tomlinson-Blake was granted permission to appeal this decision. The appeal was heard by the Supreme Court on 12 and 13 February 2020 prior to the country being placed on lockdown. No date has yet been given for when the judgment will be published.

The judgment is of huge importance to the care sector. If the decision goes in favour of Unison and Tomlinson-Blake (as it previously did in employment tribunal hearings in 2016 and 2017) then employers in this sector will face crippling claims for back pay of up to £400m. This could lead to the closure of many homes and care charities, who simply would not be able to afford such cost. Mencap estimate their liability at £20m which may lead to insolvency. As many as two thirds of care providers could be at risk of insolvency if the appeal is successful.

The Government’s guidance around pay for sleep-in shifts was updated in line with the Court of Appeal’s decision in favour of Mencap. The Government has however indicated that if the Supreme Court ruling goes in favour of Tomlinson-Blake then the guidance could change once again.

Given the potential consequences, care providers should take preparatory steps to deal with the outcome should the appeal go against Mencap, taking into account possible increased staff costs and back pay liabilities. When previous rulings went in favour of Tomlinson-Blake, the Government launched a compliance scheme to assist employers with paying their liabilities for back-pay. It is thought that the Government would likely do something similar if the appeal is successful.

This comes at a time when the care sector is already facing numerous challenges not least the COVID-19pandemic.

We will report on the judgment as soon as it is released. Based on the history of this case it will no doubt represent a difficult technical decision. It will be a relief to have some certainty on this issue but with the outcome having so much riding on it the sector continues to hold its breath.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.