A recent Court of Appeal case has ruled that carers who perform 'sleep in' shifts do not have to be paid the National Minimum Wage (NMW) during the periods that they are sleeping as they are only 'available' for work rather than 'at work'. The case (Mencap v Tomlinson-Blake) decided that only when being called on in the night, and performing care duties for more than one hour, was the payment of NMW necessary.
This is an important development for the care sector, as if the NMW had become a requirement for sleep in shifts, then years' worth of back-payments to carers would have been necessary. This would have caused serious issues for care provision across the UK, as many providers would have been unlikely to be able to pay the new NMW levels, and even fewer would be able to make all the necessary back-payments.
It appears likely that this case will be appealed to the Supreme Court and therefore care providers may still end up being required to pay NMW to sleep in carers. Should this happen then it is likely that we will see the number of care provides dwindle, causing even more severe understaffing in this sector.
If you are affected by this decision, or have any queries regarding your legal position on this matter, please contact our Business & Commercial Department on 01603 620508 or email us