The case

The case begun in 2015 when a Mencap Care worker, Claire Tomlinson-Blake, pursued a claim against the charity for failing to pay the National Minimum Wage (NMW) for sleep-in shifts she was working. It is industry standard for care workers performing sleep-in cover to receive a flat rate shift allowance which ranges from between £35 and £45.

In the first instance the employment tribunal (in 2015) found that the payment of a flat shift rate could result in a breach of the NMW Regulations and that, in the case of Mrs Tomlinson-Blake, this had occurred. Mrs Tomlinson-Blake was then awarded the maximum permissible six years of back payments for night shifts she had worked.

The decision came as worrying news to Mencap who were faced with a bill in excess of £20 million pounds in back payments to its carers that had previously worked sleep-in shifts.

The judgement was also of concern to the care industry as a whole with the bill for back payments estimated to be at around £400 million.

Facing the prospect of a £20 million payment the question of whether Mencap could continue to provide affordable sleep-in carers in the future was in doubt. Mencap launched an appeal against the decision which was heard in July 2018 by the Court of Appeal and was successful.

Unison, the union who represented Mrs Tomlinson-Blake, have stated that they are now considering an appeal to the Supreme Court.

Our view

Boyes Turner is a multi-service law firm and has a number of teams that have an involvement in employment law, Court of protection matters and assisting people that require around the clock care, such as those who have suffered a brain injury through clinical negligence or personal injury.

As Deputy or Professional Trustee, Ruth Meyer, who heads our Court of Protection team, acts as Employer for a substantial number of carers, many of whom carry our sleep-in shifts.

Due to our involvement with such clients and our dedication to ensure that they receive the best care, whilst balancing the needs and rights of our care nurse employees, we have taken a keen interest in this case and have taken the time to weigh up the social issues surrounding the decision.

The charities view

In many instances people cannot afford to pay for private care nurses and as such rely on free or heavily subsidised care from charities such as Mencap. The charities however are usually under resourced, lack funds and are oversubscribed. This combination of demand versus supply means that charities are only able to pay care nurses with low wages.

The charities argue that this ability to supply care nurses at a low price ensures that people with serious injuries or severe learning disabilities are guaranteed professional care and assistance, that their family members are able to take a well deserved break, and government resources and funds can be allocated elsewhere.

These are all arguments we understand and, of key importance, vulnerable people are receiving the vital care they need.

The care nurses view

The care nurses say that a sleep-in shift is rarely that. Instead they say they are burdened with significant care responsibilities involving providing personal care, administering medicine and having to physically assist patients in moving around. All of this occurs during broken periods of sleep which are more of a quick nap as opposed to a proper break and results in exhaustion, often for as little as £35 for an 10 hour shift, just £3.50 per hour.

The nurses say that they love their jobs and are dedicated to their patients, but financially and physically would be better off changing careers and finding a job elsewhere which pays a higher hourly rate, even if that is the NMW. The only thing stopping them is their dedication to their patients and their profession.

Again these are views we understand and we commend the nurses for their dedication to their patients.

The solution

The solution to this problem appears to be complicated. On one hand the charities need to be able to provide high numbers of care nurses at an affordable price whereas on the other the care nurses themselves need to be recognised for the hard work they perform and be paid accordingly.

The government in November 2017 launched the Social Care Compliance Scheme (SCCS) affording employers 12 months to opt in and thereafter pay back payments to carers over a period of time without incurring fines for under payment of the NMW. Carers could also opt in to register their claim for back payments. It is feared now that employers will simply not opt in or if they have opted in they will not pay the back payments they pledged to.

Of more importance to the carers is the risk that employers could seek to recover back pay payments they have already made.

What is clear to us is that a solution needs to be found to this problem and soon. One suggestion is for the government to chair a round table involving the bodies that regulate the care industry, charities, unions and nominated spokespeople care nurses in an attempt to formulate a pay scheme that affords the nurses a living wage that reflects the work they do, whilst keeping it affordable for the care industry. A possible outcome of this meeting could be agreed minimum rates for sleep-in shifts, special tax allowances for sleep-in carers or government based top-ups on earnings similar to the tax benefits scheme it already operates.