Alarm bells are ringing in one of the UK’s biggest employment sectors as we await a landmark ruling in a long-running legal battle over pay.
The awaited ruling will focus on whether carers who are expected to sleep at their workplace in case they are required overnight should be paid the national minimum wage for their entire shift – even for hours when they may be asleep.
There is much at stake. It is thought that there are more than 1.3m jobs in England’s care workforce alone – with another 500,000 being generated by 2030 to meet increased demand from an ageing population.
If Justices at the Supreme Court in London find in favour of the sleep-in care workers, it will be a far-reaching decision that could cost the UK care industry millions of pounds – and a few sleepless nights themselves.
Care firms have warned the outcome could bankrupt small providers with a six-year back pay bill – estimated at £400m in some quarters – and extra payments in future.
Currently, the only legal requirement is that employers must pay the national minimum wage. There is no legal entitlement for employees to receive increased pay for working unsociable hours.
At the centre of this latest hearing, and what makes its judgment so eagerly awaited by both employers and employees, is the legal argument that care staff should receive the minimum wage for overnight shifts even if they are asleep.
This is because “working time” under the Working Time Regulations is any period during which the worker is working at his or her employer’s disposal and carrying out duties.
This includes time whilst the worker is “on call” at or near the workplace, even if the worker can sleep during periods of inactivity. This is a key deliberation for the court as it considers the latest twist in the case of Claire Tomlinson-Blake, a Mencap support worker from East Yorkshire who looks after two autistic men.
Ms. Tomlinson Blake is back in court to challenge a 2018 Court of Appeal ruling in favour of her employer which concluded that carers were only entitled to minimum wage payments when they were required to be awake for work and not while asleep. The ruling had, in turn, overturned a 2015 Employment Tribunal decision, which ruled that such workers were entitled to minimum wage payment for the entirety of their shift.
The court heard carers like Ms. Tomlinson-Blake were “like a night watchman” and that her job “is to be there to identify when a task arises and to identify who is the person responsible for dealing with it.”
It remains to be seen whether the five Supreme Court Justices agree with this stance as their judgment has been reserved. We will all have until later in the year to learn what the ruling says.
Whether you are an employee or an employer, if you have any questions or concerns regarding the national minimum wage or Working Time Regulations, or any other employment law-related issues, please do not hesitate to contact this article’s author, Solicitor Lazuna Ullah, or a member of our Employment Law team here at Milners on 0113 245 0852 or email us at hello@milnerslaw