Supreme Court rules in Mencap's favour over sleep-in shift pay appeal  

19 Mar 2021 News

The Supreme Court has unanimously dismissed an appeal, which could have forced social care sector charities to spend millions of pounds on back-pay to employees. 

The Royal Mencap Society v Tomlinson-Blake case relates to social care workers on "sleep-in shifts", whereby they provide overnight on-call support to patients but are expected to sleep through the majority of the shift. 

For these shifts, employers like Mencap historically paid flat-rate fees at rates below the minimum wage.

Former Mencap employee Clare Tomlinson-Blake successfully challenged the legality of this, with employment tribunal hearings in 2016 and 2017 ruling that she was entitled to back-pay for historic underpayment. 

However, this was overturned by judges in the Court of Appeal last year, to the relief of some charities as it meant that they would not have to foot large back-pay bills to workers.

But in 2019 Unison, which represents Tomlinson-Blake, was granted permission by the Supreme Court to appeal the Court of Appeal ruling. 

If the Supreme Court had ruled against Mencap, it could have led to social care charities and other employers of staff that work sleep-in shifts having to pay back-pay and penalties to large numbers of staff.

Today’s judgment has been made on the basis of recommendations made by the Low Pay Commission (LPC) over 20 years ago which the government accepted at the time the National Minimum Wage (NMW) came into force. 

The LPC recommended that workers who perform sleep in shifts should not receive the NMW for hours spent asleep and should only be paid at NMW rates when they were awake for the purposes of working.

The judgment has been welcomed by providers. Care charities have estimated this could cost the sector about £400m and result in some organisations going bankrupt.

Matthew Wort, partner at Anthony Collins Solicitors, said: “Today’s judgment puts an end to many years of uncertainty. It should be seen as a line in the sand, with the focus now on ensuring changes are made in how workers are remunerated to ensure appropriate pay for time asleep. 
“At the least, a regulated minimum rate for time spent sleeping must be set. The rate could be decided by the Low Pay Commission to make it fair for care providers and employees. A more effective alternative would be establishing a national pay framework for the social care sector – providing clarity on what a care worker should be paid in all settings.” 

Anthony Collins Solicitors had represented Care England in its intervention on the Mencap vs Tomlinson-Blake case at the Court of Appeal in 2018. 

Mencap: Legislation is ‘out of date’

Mencap said it contested the case because the consequences of being forced to award back-pay would be “devastating” across the sector. 

However, it praised support workers and called for reform of the legislation to ensure they are paid fairly.  

Edel Harris, chief executive of Mencap, said: “Support workers within Mencap and across the sector do an exceptional job. They are dedicated in their care for people with a learning disability and should be paid more.” 

Former care workers have previously criticised Mencap for bringing the case. Today Harris said: "We understand that many hard-working care workers will be disappointed by its ruling."

“Mencap contested this case because of the devastating unfunded back-pay liabilities facing providers across the sector. This was estimated at £400m. 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.” 

Harris also called for a review of the law and for the care system to be better funded. 

“We believe that the legislation covering sleep-in payments is out of date and unfair and we call on government to reform it,” she said. “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. It is disappointing that there is still no plan for social care reform.”

Mencap has paid top ups for sleep-in shifts since 2017 and said it would continue to do so. 

Unison: ‘No-one is a winner’ 

Unision had brought the appeal on behalf on Clare Tomlinson-Blake and said today that the ruling was a “huge blow”. 

However, the judgment marks the end of legal action and the union will now turn its attention to pushing for legal changes to improve the conditions for sleep-in shift workers. 

Christina McAnea, general secretary at Unison, said: “No one is a winner from today’s judgment. Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance.    

“This dire situation was ignored by the government for years before Covid, and again in the recent Budget.  

“Today's judgment shows ministers can’t disregard the desperate need for major reform a moment longer. That includes a well-resourced national care service that ensures staff are paid fairly to help resolve soaring job vacancies.    

“The longer the delay, the greater the betrayal of the most vulnerable in society and the dedicated workers who look after them.”  

Speaking after the judgment, Tomlinson-Blake said: “This case was never about the money. It was about the principle of treating staff fairly.  

"Sleep-in shifts aren’t about just being on call – it’s work. 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.

“It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too.”    

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