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Supreme Court to hear care workers' case in £400m Mencap sleep-in battle

Low-paid social care workers have won the right to appeal against a decision not to pay minimum wage to carers performing ‘sleep-in’ shifts following a ruling by the Supreme Court.

The decision means social care workers will be able to argue that sleep-in shifts should count as working time to the Supreme Court – which, if approved, could see social care companies ordered to pay £400m in backpay.

But the charity at the centre of the on-going legal battle, Mencap, has said the care sector has been “plunged back into uncertainty” by the decision.

Employment tribunals in 2017 saw HM Revenue & Customs state that social care workers should be paid at least the minimum wage for every hour overnight which would see their overnight pay double.

Social care providers were ordered to pay their carers six years of back pay, worth around £400m, but several providers warned that they faced insolvency if forced to fund the back pay.

Those rulings were overturned by the Court of Appeal in July 2018, and the LGA’s Izzi Seccombe said the ruling came “as a relief to care providers and councils” as it removed the uncertainty around a potential unfunded burden on top of already significant financial pressures.

Unison lodged an appeal, and following today’s ruling the union said it was “extremely good news” for social care staff.

“Now there’s the chance to clarify the law once and for all,” said Unison’s general secretary Dave Prentis.

Prentis noted that the thousands of care staff working sleep-in shifts to look after vulnerable children and adults should be celebrated – and not “expected to survive on a pittance.”

“Care employees are working on sleep-in shifts so this time should be counted as working time. They aren’t free to come and go as they please and, as often the sole member of staff, they’re likely to be on their feet for much of the night,” he added.

“Any local authorities or care providers seeking to take advantage of the uncertainty of the current situation by cutting pay rates now are acting.”

Unison can now appeal the July 2018 ruling in the Royal Mencap Society v Tomlinson-Blake case, although the case will not be heard by the Supreme Court until October at the earliest.

Jan Tregelles, chief executive of Mencap, said: “This plunges the care sector back into uncertainty and underlines the need for the government to legislate so the position is clear.

“For us, this was not about what we currently pay our dedicated support workers for sleep-ins – we pay national living wage rates and have no plans to stop.

“We did not want to bring this case, but had to because the prospect of having to make large unfunded back payments threatened to bankrupt many providers, jeopardising the care of vulnerable people and the employment of their careers.”

Image credit - Dean Mitchell


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