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The new rock-and-a-hard-place: would fair pay for care workers bankrupt the care sector?

Ryan Bradshaw and Paige Jones, from the employment team, discuss the case currently before the Supreme Court in relation to the correct rate of pay for care workers on ‘sleep-in’ shifts and the impact it could have

Supreme Court, Middlesex Guildhall
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Ryan joined Leigh Day, in 2015, to work in the discrimination and employment department and is based in Manchester. He conducts litigation on behalf of individual clients, groups  and Trade Unions. Paige is a paralegal in the employment and discrimination department
The Supreme Court is currently considering the case of Royal Mencap Society v Tomlinson-Blake in which the Court must decide whether care workers on ‘sleep-in’ shifts are entitled to national minimum wage for the duration of their shift. 

There is a lot riding on the decision because clarification on this point of law is long overdue. 

To find in favour of Ms Tomlinson-Blake will open the doors to future legal action from a large number of care workers who have been systemically underpaid for years for their sleep-in shifts. 

On the other hand, to find in favour of Mencap will justify a system in which care workers are unfairly paid for their work. 

Ms Tomlinson-Blake is an experienced care worker who, from time to time, would undertake ‘sleep in’ night shifts in the private residence of two clients with autism and severe learning difficulties. During these shifts, Ms Tomlinson-Blake had sole responsibility for the care needs of the clients at any point during the night and if no issues arose during the course of her shift, she was allowed to sleep. 

For this work, between the hours of 10pm and 7am, Ms Tomlinson-Blake received a flat rate of £22.35 plus one hour’s pay of £6.70, giving her a total pay of £29.05 which amounts to approximately £3.23 per hour. 

In August 2016 an Employment Tribunal found that Ms Tomlinson-Blake should be paid the national minimum wage for all of the hours spent on shift as they amount to ‘working time’ for the purposes of the National Minimum Wage Regulations 2015. 

This decision was upheld by the Employment Appeal Tribunal (EAT) in April 2017 which , applying an approach centred around the facts of each particular case, found that the nature of Ms Tomlinson-Blake’s obligations, such as the significant responsibility placed upon her as the sole decision-maker during the shifts, the need to ‘keep a listening ear’ whilst sleeping and the fact that Mencap have a statutory obligation to ensure that a care worker was onsite at all times, led to a conclusion that she was ‘working’ for the duration of her shift. 

In July 2018 the Court of Appeal was of the opposite view and dismissed the case. Lord Justice Underhill found that Ms Tomlinson-Blake was not ‘working’ for the purposes of the Regulations but rather she was ‘available for work.’ This distinction meant that Ms Tomlinson-Blake fell within the exception under Regulation 32 and, therefore, Mencap was not required to pay her national minimum wage for the hours that she was asleep.

Lord Justice Underhill appears to have reached his decision through a restrictive, and narrow, interpretation of the Regulations. In some ways, a bright line approach to legislation can create clarity in terms of how laws are to be applied but such an approach also enforces a rigidity that fails to acknowledge the very real circumstances of people’s lives. The lives of care workers which, unsurprisingly, do not fit neatly into just one side of this bright line. 

Mencap, and other charities that provide overnight care, are concerned that a finding in favour of Ms Tomlinson-Blake will have the effect of bankrupting many care providers who can neither afford to provide years of backpay for sleep-in shifts, nor can they afford to pay national living wage for these shifts. 

According to a report by Skills for Care, an estimated 190,000 domiciliary care workers left their role in 2018/19. This trend is unlikely to change if care workers are not paid a fair wage that reflects the hard work and dedication that they show in caring for some of the most vulnerable people in society. 

Whatever the decision of the Supreme Court is, it will have a ripple effect that will be felt throughout both employment law and the care sector.  

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