Appeal court finds flat sum for sleep-in care shifts is fair
The court of appeal has overturned a ruling on payments for care workers who carry out “sleep-in” shifts for clients with learning disabilities, potentially averting a crisis that employers claim would have jeopardised the care of vulnerable people.
A court ruled last year that care workers should be paid the national minimum wage for every hour of a sleep-in shift – rather than a flat sum – in effect doubling the cost of a shift to £60. It said providers should be liable for six years of back pay to care workers.
Yesterday the appeal court reversed the back-pay decision and ruled that flat-rate payments were fair, meaning sleep-in shift care workers could receive the full rate only for those hours during which they were awake and assisting the client.
Employers welcomed the ruling, saying that the back-pay liability – collectively estimated at about £400m – would have bankrupted many providers. But they called on the government to issue new guidance on how workers are to be paid for sleepin shifts, and properly fund the costs.
Derek Lewis, the chair of the learning disability charity Mencap, which brought the appeal, 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.”
He said Mencap had been paying for sleep-ins at the higher rate for over a year and intended to continue despite the court’s decision. “We now call on government to fulfil its responsibilities by legislating so that all [care workers] are entitled to this, and their employers are funded accordingly.
“We also call on government to ensure that the social care sector and, in particular, the specialised support that is required for people with a learning disability, is properly funded and its workers are paid what they deserve in the future.”
Unison called the decision a “mistake” that would enforce “pittance” pay on care workers. The union said it was considering an appeal to the supreme court.
It argued that most care workers should be paid the full rate for sleepin shifts because they are on constant call, are regularly up during the night to assist the client, and are not free to leave their place of work.
Dave Prentis, Unison’s general secretary, said: “Social care is in crisis, and this situation wouldn’t have arisen if the government had put enough money into the system and enforced minimum wage laws properly.”