Sleep-in shifts update: care providers breathe a sigh of relief

After a long delay, judgment in the Mencap case has finally been handed down by the Supreme Court.

The Supreme Court has upheld the decision of the Court of Appeal and found in Mencap’s favour at the final stage of appeal. The impact of this decision is that Mencap and other care providers can continue to pay flat rates for sleep in shifts. Had the appeal been successful Mencap and other care providers would have been faced with significant claims by employees for back pay.

The Mencap decision has finally put to bed the debate over whether sleep-in shifts should be counted as working time for the purposes of the National Minimum Wage (NMW). The Supreme Court has held that it could not have been the intention of the government that anyone who is permitted to sleep could be deemed to be ‘working’ or engaged in ‘time work’ for the purposes of NMW. If a worker is actually called upon to respond to someone’s care needs during a sleep-in shift, this would be deemed as ‘time work’ for which NMW should be paid.

This landmark ruling will come as a huge relief to care home providers all over the country, who have faced the potentially catastrophic impact of claims for back pay relating to sleep in shifts. There were concerns that if Mencap had lost, the entire sector could have collapsed with many charities and care providers simply not being able to meet the resulting liabilities.

Unions have reacted angrily to the decision and have called for a root and branch reform of the care sector which, they consider, is struggling after years of underfunding. Unison, who backed the original case brought by Claire Tomlinson Blake in 2016 said that the ruling was “a huge blow to everyone in social care”.  Unison general secretary Christina McAnea said: “No-one is a winner from today’s judgement. Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance”. Staff retention is an ever-increasing issue within the care industry, particularly given the intense strain placed on care workers during the Covid19 pandemic. This ruling could be viewed as a serious blow to both retaining and attracting staff.

Our series of recent articles on this complex dispute can be found here below

• Sleep-in shifts: the care sector holds its breath
• Sleep in shifts update