Mencap ruling – a sigh of relief but providers need to remain competitive

Comment on the Supreme Court’s ruling in favour of Mencap in the “sleep-ins” case today from TLT.

Siobhan Fitzgerald, partner at UK law firm TLT, says:

“In a landmark judgment for the care sector, the Supreme Court ruled that workers are not entitled to count each hour of their sleep-in shift when calculating if they have received the National Minimum Wage (NMW), leaving care providers breathing a sigh of relief.

“The Supreme Court has agreed with the Court of Appeal’s 2018 decision that a sleep-in was working time only when the worker is awake to carry out any relevant duties. The reasoning behind this decision is that care workers who are required to sleep at, or near, their workplace and be available to provide assistance were only ‘available for work’, rather than actually working.

“However, while the decision has gone in Mencap’s favour, it is important that all care providers address their approach to payment for sleep-ins, to help ensure they remain competitive in the market while still working within their financial means. From an administrative point of view, employers will need to ensure that systems are accurately recording time spent working during sleep-in shifts, so that workers’ pay does not fall below NMW levels. Failure to accurately record and pay NMW can not only lead to claims for back-pay, but also liability for fines of up to £20,000 per worker.

“The Supreme Court’s decision will certainly be welcomed by employers in the care and social housing sectors as, if it had gone the other way, it may have left many providers in a financially perilous position. The potential cost to the sector could have been in the region of £400million, so this decision will undoubtedly protect jobs and the care industry as a whole –particularly at a time when they have been hard-hit by the Covid pandemic. This ruling is the final word on the question of underpayment of NMW for sleep-in staff; there is no further route of appeal for the claimants, providing much-needed certainty for the affected sectors.”