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The cost of forty winks

The Supreme Court decision on sleep-in shift pay brings welcome and long-awaited clarification on this issue, but for care providers this raises some important practical considerations, says Laura Paton, senior associate solicitor at Ridouts Solicitors.
(Additional information by freelance writer Eleanore Robinson)

It has also prompted some drastic decisions on pay.

According to solicitors, some local authorities have used the Mencap Supreme Court decision to reduce their fee rates to reflect the ruling.

Emma Burrows, head of employment at law firm Trowers & Hamlins, says ongoing financial distress has prompted some local authorities to consider whether sleep-in fees can now be reduced.

She says this is more typical for the south of England, than in the North, where local authority commissioners already typically pay sleep-ins at National Minimum Wage (NMW) levels.  

She added: “Everyone is between a rock and a hard place on this. It is really, very difficult.”

The move to reduce pay in light of the Supreme Court ruling is also being adopted by some care homes, where employment contracts allow, and workers’ union Unison says it is supporting care staff in challenging any such moves. Social care senior national officer Gavin Edwards said: “The decision was a huge disappointment to care staff.  The concern is unscrupulous employers will see the judgment as a green light to cut wages even further.”  

Others, though, are taking a more supportive approach, considering the efforts staff have made throughout the pandemic.  Burrows added that some providers are lobbying the Low Pay Commission to see whether sleep-in work can be reclassified as a job paid at the NMW.  However, the Low Pay Commission would have to be instructed by the Government to do this.

UNISON will also be challenging the government to change minimum wage laws. 

Edwards said: “Sleep-ins should be counted as working time. Urgent reform of the sector would ensure all care staff are paid at least the National Living Wage.”

Provider obligations
Depending on local arrangements for paying sleep-in staff (allowance vs hourly rate), there may be a need or desire to consider making changes. However, it must be kept in mind that the decision of the Court does not take effect automatically and does not absolve providers of any current contractual obligations.

First and foremost, providers will need to check individual contracts of employment for sleep-in staff to see what specific provisions are made for sleep-in payments. This will include checking whether the contracts currently expressly provide that staff will be paid for all the time they are at a service for a sleep-in and whether there is any express provision in the contract which states that staff may sleep whilst on shift.

New contractual provisions must be clear about precisely what will be included in time spent ‘awake’ for the purposes of work and provide clear systems and processes to record that time “awake for the purposes of working” during the shift.

Providers must also ensure that sleeping facilities are available for sleep-in staff and that there is a genuine expectation that the staff will sleep during the shift. If sleep-in staff are expected/scheduled to undertake duties beyond responding to emergencies, the sleep-in provisions will not apply and the shift will attract pay at the NMW for the duration.

Any changes that need to be made should be done through a process of careful consultation. Legal advice is recommended, particularly for larger providers, who may need to carry out collective consultations.

The case in detail
The case concerned payment of National Minimum Wage (NMW) for sleep-in shifts. Specifically, the calculation of time spent by care workers for the purposes of the National Minimum Wage (NMW) regulations.

The central question to be resolved was whether providers are required to pay sleep-in staff the NMW for the duration of sleep-in shifts even if the staff concerned were never awake for work.

The Supreme Court held unanimously that if a worker was expected to sleep during a shift, this would not be deemed as working time for the purposes of the NMW calculations and that only the period for which the worker is actually awake for the purposes of working would be included in the NMW calculation.

For more information on the case, visit the Supreme Court   

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