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Supreme Court's decision on care workers' pay offers HR clarity

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The Supreme Court has ruled UK care workers who have to sleep at their workplace during their shift are not entitled to the National Minimum Wage (NMW) for their whole shift.

Last Friday (19) the Supreme Court ruled in favour of learning disability charity Mencap and dismissed the request of Clare Tomlinson-Blake, the charity's former employee, to reimburse care workers the extra costs and back-pay liabilities she argued they were owed.

Tomilson-Blake told BBC News sleep-in shifts aren't about just being on call and that it should be classed as work and carers should therefore be paid. 

"Staff are constantly on guard to protect the most vulnerable in society. The sound of a cough in the night could mean someone's in danger," she said. 

Yet the ruling has left both sides or the dispute dissatisfied in what has been a lengthy battle both in and out of the courts.     

 

Speaking to HR magazine, Sophie Forrest founder and managing director of HR support company ForrestHR, said the ruling comes as a necessary close to what has been an unsettling grey area for care-sector workers and employers for many years.

She said: “While it must be acknowledged that such rulings can't find equality for both sides, it is helpful to finally have a clear structure to the rules and their interpretation on how care workers are paid regarding work availability.”

The Supreme Court has agreed with the Court of Appeal’s 2018 decision that a sleep-in was working time only when the worker is awake to carry out any relevant duties.

Siobhan Fitzgerald, partner at UK law firm TLT, said the reasoning behind the decision is that care workers who are required to sleep at, or near, their workplace and be available to provide assistance were only ‘available for work’ rather than actually working.

However, Fitzgerald added: “While the decision has gone in Mencap’s favour, it is important that all care providers address their approach to payment for sleep-ins, to help ensure they remain competitive in the market while still working within their financial means.

“Employers will need to ensure that systems are accurately recording time spent working during sleep-in shifts, so that workers’ pay does not fall below national minimum wage levels.”

Fitzgerald said failure to accurately record and pay national minimum wage can not only lead to claims for back-pay, but also liability for fines of up to £20,000 per worker.

Now the ruling has been made, HR will be able to put structures in place to ensure workers the care sector are being properly paid.

Forrest told HR magazine: “The ruling means HR leaders and care-sector employers will now have the chance to plan properly and with certainty how they manage their operations and navigate their budgets going forward."

The chance to put such measures in place comes at a particularly useful time for the care sector, said Forrest. 

"Having been at the forefront of the challenges posed by the coronavirus pandemic, it is helpful that HR leaders in the sector now have a clear understanding of their financial obligations to staff who provide available-to-work cover overnight.”