Employers avoid £400m payout with landmark ruling for carers

On March 19 2021, the Supreme Court ruled that care workers who fulfil ‘sleep-in’ shifts are not entitled to be paid NMW for any hours that they are not awake and not actually performing a specific activity.

The CIPP explained that this latest ruling puts an end to a legal battle that has spanned four years and related to two care workers employed by the charity Mencap.

One of the claimants in question was Clare Tomlinson-Blake, who was a support worker for adults that were classed as being vulnerable. Her job involved carrying out ‘sleep-in’ shifts between the hours of 10pm and 7am. The other claimant was John Shannon, a carer, who, as part of his role, had to stay overnight at a residential care home based in Surrey.

Cases held back in 2018, which were both dismissed by the Employment Tribunal and Court of Appeal, saw Tomlinson-Blake assert that her flat-rate pay, plus an hour’s pay, for ‘sleep-in shifts’ should instead be paid at standard NMW rates. Shannon also fought for an hourly pay rate as opposed to a flat rate of pay for the duration of time in which he was required to complete ‘sleep-in’ shifts.

The stance taken by the Supreme Court is that care workers are only eligible for the NMW hourly rate on ‘sleep-in’ shifts, for any time that they are actually awake for the purposes of working.

One of the implications of the judgement is that neither Tomlinson-Blake or Shannon are able to submit claims for any backdated pay. If the outcome of the case had been different, and payment of the NMW would have been made mandatory for all hours spent on ‘sleep-in’ shifts, then this could have resulted in impacted employers having to pay out more than £400m in backdated wages.