Overnight car­ers will not be paid min­i­mum hourly rate, court rules

The Scotsman - - Around Scotland - By SIAN HARRISON

Car­ers who have to sleep at their work­place in case they are needed overnight will not be paid min­i­mum hourly rates af­ter a Court of Appeal rul­ing.

In a de­ci­sion which could have cost the UK care in­dus­try bil­lions if it had gone in favour of work­ers, three lead­ing judges said car­ers were only en­ti­tled to min­i­mum wage when they were re­quired to be awake for work.

At a hear­ing in March, the Royal Men­cap So­ci­ety chal­lenged a tri­bunal de­ci­sion made in favour of Claire Tom­lin­son-blake, a Men­cap sup­port worker in the East Rid­ing of York­shire.

The court was told that Mrs Tom­lin­son-blake re­ceived a salary for her full-time job help­ing vul­ner­a­ble adults liv­ing in their own homes, and some­times had to work a sleep-in shift be­tween 10pm and 7am.

For those shifts she was paid an al­lowance of £29.05, which in­cluded pay for an hour’s work.

If she was wo­ken in the night and had to work for more than an hour, she would re­ceive ex­tra pay for the time worked.

But the Em­ploy­ment Tri­bunal found she used her “lis­ten­ing ear” and her ex­pe­ri­ence to know when she was needed, and was “work­ing” even when she was asleep.

The tri­bunal said she was en­ti­tled to re­ceive an hourly min­i­mum wage, which would have been more than £60 per shift, a de­ci­sion up­held by the Em­ploy­ment Appeal Tri­bunal (EAT) last year.

How­ever, Lord Jus­tice Un­der­hill, sit­ting with two other se­nior judges, said: “For the rea­sons which I have given I be­lieve that sleep­ers-in... are to be char­ac­terised for the pur­pose of the reg­u­la­tions as avail­able for work... rather than ac­tu­ally work­ing... and so fall within the terms of the sleep-in ex­cep­tion. The re­sult is that the only time that counts for na­tional min­i­mum wage pur­poses is time when the worker is re­quired to be awake for the pur­poses of work­ing.”

The appeal was re­sisted by Mrs Tom­lin­son-blake.

The court also re­jected an appeal by a Sur­rey care home worker who failed to con­vince the Em­ploy­ment Appeal Tri­bunal that he should have been paid the min­i­mum wage for shifts when he was “on call”.

Derek Lewis, Royal Men­cap So­ci­ety chair­man, said: “The prospect of hav­ing to make large un­funded back pay­ments had threat­ened to bank­rupt many providers, jeop­ar­dis­ing the care of vul­ner­a­ble peo­ple and the em­ploy­ment of their car­ers.

“Many hard-work­ing care work­ers were given false ex­pec­ta­tions.”


The Bat­tle of Bri­tain Memo­rial Flight – a Spit­fire, a Hur­ri­cane, and a Lan­caster – per­forms a fly-past at the Royal In­ter­na­tional Air Tat­too. The event, at RAF Fair­ford in Glouces­ter­shire, ends to­mor­row

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