Supreme Court sleep-in appeal decision is blow for ​everyone in social care, says UNISON        

Christina McAnea says government must act now to overhaul broken system where staff are paid a pittance


The judgment today (Friday) by the Supreme Court that social care staff are not entitled to the national minimum wage for every hour they work​, including sleep-in shifts​, is a huge blow for thousands across the country, says UNISON.

The union says the ruling is a major disappointment​, but that it increases pressure on the government to bring forward ​much needed reform of the crisis-ridden sector.

Today’s ruling marks the end of a long-running UNISON-backed case taken on behalf of care worker Clare Tomlinson-Blake against her now former employer Mencap.

Ms Tomlinson-Blake – who provided 24-hour support to two men in their own home – argued that every hour of her night shifts should count as working time. She was required to keep ‘a listening ear out’, provide support where needed and respond to emergencies.

An employment tribunal initially found in her favour, but the Court of Appeal overturned the decision in July 2018. Then in February 2019, the Supreme Court granted Ms Tomlinson-Blake permission to appeal and UNISON continued to support this case.

In their ruling, the Supreme Court acknowledged that no-one would doubt the importance of care workers who look after those who cannot look after themselves, and that sleep-in staff are among the low paid.

However, the justices said that workers must be paid national minimum wage when they are awake and working, but they do not need to be paid this when they’re asleep.

​A national social care system is needed now to transform the country’s broken care service where skilled staff are undervalued and underpaid, ​and vacancy rates are high, says UNISON.

A ​well-funded service that mirrors the NHS would ensure workers are paid fairly, help fill job vacancies, and ensure those who depend on care receive quality support.

UNISON will now push for a change in the law so sleep-in shifts count as working time. The union is also urging employers and local councils commissioning care not to cut existing pay rates for already low-paid staff.

Commenting on the decision, UNISON general secretary Christina McAnea said: “No one is a winner from today’s judgment. Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance.

“This dire situation was ignored by the government for years before Covid, and again in the recent Budget.

​“Today’s judgment shows ministers can’t disregard the desperate need for major reform a moment longer. That includes a ​well-resourced national care service ​that ensures staff are paid fairly to help resolve soaring job vacancies.

“The longer the delay, the greater the betrayal of the most vulnerable in society and the dedicated workers who look after them.”

Speaking after the judgment, Clare Tomlinson-Blake said: “This case was never about the money. ​It was about the principle of treating staff fairly.

​”Sleep-in shifts aren’t about just being on call – it’s work. Staff are constantly on guard to protect the most vulnerable in society. The sound of a cough in the night could mean someone’s in danger.

“It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too.”

Notes to editors: 
– The case taken by UNISON on behalf of Clare Tomlinson-Blake was successful at both employment tribunal (2016) and employment appeal tribunal (2017). But in July 2018 the Court of Appeal found in favour of the Royal Mencap Society. UNISON was then given permission by the Supreme Court in February 2019 to appeal against the Court of Appeal judgment. ​The appeal was heard in February 2020.
– Compliance with national minimum wage regulations is calculated over a pay reference period, usually one month. To comply, an employer must pay at or above minimum wage for all the hours defined as “work”. This judgment means the only time when an employee is awake for the purpose of working is counted as hours worked.
– Case studies (names have been changed):
Here are examples of care workers who are paid less than the minimum wage for their sleep-in shifts.
Jane works a nine-hour sleep-in shift from 10pm to 7am and get​s paid £37.53​, which is the equivalent of just over £4 and hour. She says: “One person I look after has learning difficulties and is up all night wandering around. They flush toilet paper down the loo repeatedly until the roll is empty. I’m awake to ensure they’re ok, or to see if they need anything. I don’t sleep and what I’m paid is an insult. I love the people I care for and those I work with. But the system is unfair and needs to be overhauled.”
Mark has been in the care sector for seven years and does two sleep-in shifts a week. He says: “The autistic person I look after starts shouting at 3am, usually for about an hour. Even when they stop, I can’t sleep in case they get up and wander off. But ​my employer do​esn’t class this as working and cheapen​s the work by paying just £30 for a seven-hour sleep-in shift. It’s shocking the way we’re treated.”
​Sarah has been doing sleep-ins for 13 years. She says: “One of the women I care for falls out of bed several times a night. She’s up most of the time so I have to be up too. I often have to change people, shower them, redo their bedding and put them back to bed. You never sleep, and at best doze sometimes. It’s not worth going to bed. I just stay on the couch knowing I’ll be on my feet again within minutes.”
– Last year, more than 80 organisations – including the National Care Association, Care and Support Alliance, Carers UK, Alzheimer’s Society and UNISON – joined forces to create the Future Social Care Coalition. This is calling for a fair wage deal for low​-paid staff. This would be possible with a £3.9bn* emergency support fund from the government.
– UNISON is the UK’s largest union including for social care. It has more than 1.3 million members providing public services in education, local government, the NHS, police service and energy. They are employed in the public, voluntary and private sectors.

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