Ap­peal court finds flat sum for sleep-in care shifts is fair

The Guardian - - NATIONAL - Pa­trick But­ler So­cial pol­icy ed­i­tor

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.”

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