The National Minimum Wage (NMW) was introduced in 1998. From 1st April 2021, NMW (for school leavers) and National Living Wage (for over 23s) hourly rates are:

23 and over21 to 2218 to 20Under 18Apprentice
£8.91£8.36£6.56£4.62£4.30

The Supreme Court in London recently considered the appeals of two “sleep-in” care workers. A sleep-in worker is permitted by arrangement to sleep in, or near, their place of work. The NMW regulations expressly exclude “where the worker is permitted to sleep during the shift”. Typically, this would apply to workers covering night shifts in care homes. 

Background

The first appellant, Mrs Thomlinson-Blake, was a highly qualified care support worker who provided care to two vulnerable adults in their own home. On the night shift, she was permitted to sleep but had to remain at her place of work and “keep a listening ear out” in case of infrequent emergencies. Mrs Thomlinson-Blake was paid a flat rate of £22.35 for each night shift plus one hour at the NMW rate of £6.70 – £29.05 in total.

The second appellant, Mr Shannon, was an on-call night care assistant at a residential care home. He was salaried, with free accommodation on site, where he was required to be from 10 pm to 7 am. Mr Shannon was permitted to sleep during those hours but had to assist the night care worker on duty if required, which he seldom was.   

Judgment

The Supreme Court was unanimous in dismissing the appeals.

Under the NMW Act, the Government is bound to implement the recommendations of the Low Pay Commission (LPC) on the NMW unless it provides reasons to Parliament for not doing so.

The LPC recommendation on sleep-in shifts was accepted by the Government.  That recommendation was that sleep-in workers should received an allowance rather than the NMW unless they are awake for the purposes of working.

Accordingly, where the appellants were not “awake for the purposes of working”, they were not entitled to be remunerated at the NMW rate. 

Rejoinder

Edel Harris, Chief Executive of the Royal Mencap Society, acknowledged the exceptional job that care workers do and said:

Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. This was estimated at £400 million. Sleep-ins are a statutory care service which should be funded by Local Authorities, and ultimately Government. It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point. Some providers would have gone bust and, ultimately, the people who rely on care would have suffered. 

Ms Harris continued:

We believe that the legislation covering sleep-in payments is out of date and unfair and we call on Government to reform it. More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better.

Professor Martin Green, Chief Executive of Care England, said:

After a lot of uncertainty it is useful to have this ruling from the Supreme Court. Our staff are our best resource and need to be valued as such.  This is all part of the broader picture of the much needed reform of the adult social care sector which we will continue to press the Government on.

To find out how delivering unique, engaging content to your law firm clients can help to transform your bottom line, get in touch.

Open in Spotify

By Paul Sullivan FRSA

Creating unique, engaging content for your law firm clients