'Radio silence' from government over care worker sleep-in payments is 'unacceptable'

Charities are demanding ministers get back to Parliament to resolve the sleep-in payments crisis in the care sector with the chair of the Voluntary Organisations Disability Group (VODG) warning the “radio silence from government is unacceptable”.

The disability group warns a ‘lack of clarity’ from the government over sleep-in payments could lead to local care markets moving in “ad hoc and un-coordinated ways” to put at risk essential overnight care for disabled people.

It also warned care providers are continuing to take expensive legal advice and action on sleep-in payments – which could be better spent elsewhere.

Steve Scown, chair of the VODG said: “As Parliament returns this week we are taking the opportunity to remind government that the time has come to make urgent and important decisions about the future of sleep-in support.

"Government must to be very clear on what changes it is proposing about sleep in shift work ahead of wider consultation.”

A 'sleep-in' involves a care worker sleeping in the home of someone they support so that they are on hand in case of an emergency or any other problem in the night.

In August, Unison appealed the Royal Mencap Society v Tomlinson-Blake judgement. The trade union asked the Supreme Court for leave to appeal against a Court of Appeal decision made in July which ruled care workers’ sleep-in shifts do not count as work time and do need to be paid in line with the national minimum wage.

The Court of Appeal ruled in favour of an appeal from care provider Mencap, against Unison’s initial employment tribunal case made on behalf of the care worker Clare Tomlinson-Blake. The trade union has long argued sleep-in shifts should count as working time and should be paid at hourly minimum wage rates or higher.

The Court of Appeal judgement states the National Minimum Wage does not apply to sleep-in shifts unless the worker is awake for the purpose of working. The Lord Justices' key words on this are: “The only time that counts for NWM purposes is time when the worker is required to be awake for the purposes of working.”

Unison’s head of legal services Adam Creme said on 8 August: “We believe the Court of Appeal got this decision completely wrong and will do everything we can to reverse it.

“There will be a period of time when the Supreme Court considers the application, but it is reasonable to expect the court will agree to hear an appeal. Assuming this is agreed, UNISON will be taking the appeal forward and fighting for our members.”

Mencap: ‘We had no choice but to appeal to avoid mayhem’

On 23 August, Derek Lewis, chair of Royal Mencap Society confirmed Mencap had lodged an objection to Unison’s application to the Supreme Court to appeal the Court of Appeal ruling on sleep-in payments.

Mr Lewis said: “We regret having had to take this step, just as we regretted having to go to the Court of Appeal in the first place.

“We believe that time spent ‘sleeping-in’ by our colleagues and care workers in other organisation should be covered by the minimum wage regulations.” Mencap has asked Government to change the regulations “to require local authorities to fund it, supported by the necessary funding from central Government.”

“The original intention of the minimum wage legislation had been that sleep-ins should be excluded from the minimum wage. Different interpretations from some tribunal cases would have triggered a provision in the legislation designed to punish rogue employers by requiring six years of back pay.”

Mencap argues this would have led to a £400m bill for the care sector and nearly £20m for Mencap, resulting in bankruptcies among providers, disrupted care for people with learning disabilities and job losses for care staff.

‘Sorry’ some had ‘expectations of a retrospective payment’

“Because there has been no commitment from Government to fund such back pay we had no choice but to appeal these tribunal decisions to avoid the mayhem that would otherwise have ensued.

“We regret Unison’s decision to apply to appeal to the Supreme Court and have had no choice but to object for the same reasons that we appealed to the Supreme Court in the first place. We are very sorry that some colleagues may have been given expectations of a retrospective payment.”

Mr Scown, chair of VODG added: “It is over seven weeks since the Court of Appeal judgement was handed down. The continued uncertainty, for both social care staff and providers, helps no-one.”