Care Providers Breathe Massive Sigh of Relief After Court of Appeals Ruling
The Court of Appeal has found that carers who sleep at a client’s home, while technically being on call, are not entitled to the National Minimum Wage while they are asleep.
The ruling in the case of Royal MenCap Society v Tomlinson-Blake finally offers some clarity in an area of employment law that has historically been troublesome and had a severe financial impact on many care providers – some of which had been facing bills of hundreds of thousands of pounds should the decision have gone the other way. They will be breathing a huge sigh of relief.
Emma O’Leary is an employment law consultant for the ELAS Group. She says: “Historically the care sector has paid a flat rate for sleep-in shifts i.e. shifts where the carer is required to be present should a service user need assistance during the night but can otherwise sleep in facilities provided. Case law over the years has challenged this which lead to flat rates being unlawful and carers being entitled to the National Minimum wage, even if they were asleep. The care sector, which was already in crisis, suffered a huge financial burden as a result and faced the prospect of having to make back payments to carers who had been receiving flat rates of pay for years.
Last Friday’s ruling reversed this position. This means that if the carer is available for the purpose of working, at or near his/her place of work, and is provided with facilities for sleeping with the intention that they will be able to sleep, they need only to be paid NMW for the hours that they are actually awake for the purpose of working.
This lifts a significant burden from the care industry. It means that they are no longer liable for back pay and care providers can review their current rates for sleep ins. However, as a word of caution, we would not advise care providers to simply cease all sleep-in payments and revert to flat rates as there may still be contractual obligations to consider. This decision by the Court of Appeals does, however, certainly lighten the load and we can advise on how to deal with this