The Supreme Court Ruling on National Minimum Wage for Sleep-in Shifts – Implications for Providers (as published in Care Home Management Magazine)

On 19 March 2021, the UK Supreme Court handed down its landmark decision in the case of Royal Mencap Society v Tomlinson Blake.

The case concerned payment of National Minimum Wage (NMW) for sleep-in shifts. Specifically, the calculation of time spent by care workers for the purposes of the NMW regulations.

The central question to be resolved was whether Providers are required to pay sleep-in staff the NMW for the duration of sleep-in shifts even if the staff concerned were never awake for work.

The Supreme Court held unanimously that if a worker was expected to sleep during a shift, this would not be deemed as working time for the purposes of the NMW calculations and that only the period for which the worker is actually awake for the purposes of working would be included in the NMW calculation.

Although the decision brings welcome and long awaited clarification on this issue, there are practical considerations arising out of it which care providers will want to bear in mind.

Implications

Depending on the arrangements that individual providers have in place for paying sleep in staff (allowance vs hourly rate), there may be a need or desire to consider making changes to current practice for sleep in payments. However, it must be kept in mind that the decision of the Court does not take effect automatically and does not absolve providers of any current contractual obligations.

First and foremost, providers will need to check individual contracts of employment for sleep-in staff to see what specific provisions they make for sleep-in payments. This will include checking whether the contracts currently expressly provide that staff will be paid for all the time they are at a service for a sleep-in and whether there is any express provision in the contract which states that staff may sleep whilst on shift.

Changes may need to be made to individual contracts and, if so, this will have to be done through a process of careful consultation. Legal advice on this would be recommended especially in the case of larger providers who may require to carry out collective consultations.

New contractual provisions must be clear about precisely what will be included in time spent awake for the purposes of work and provide clear systems and processes to record that time “awake for the purposes of working” during the shift.

Providers must also ensure that, for sleep in staff there are sleeping facilities available and that there is a genuine expectation that the staff will sleep during the shift. If sleep-in staff are expected/ scheduled to undertake duties beyond responding to emergencies, the sleep-in provisions will not apply and the shift will attract pay at the NMW for the duration.

Conclusion

The decision has largely been welcomed by the sector as it means there will not be huge liabilities for back pay which would have been difficult to meet in the current financial climate, however it has also shone a spotlight on the issue of pay for social care staff, highlighting the lack of any clear national framework or guidance as to what constitutes a fair wage.

Those issues were beyond the scope of the judgment which focused on the interpretation of the NMW regulations but are issues which sector organisations continue to lobby government on.

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