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.
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.
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.
What does the future hold?
Unison have already indicated that they are considering taking this case to the Supreme Court, which they must do within 28 days. We will be monitoring this case if it is taken forward and will keep you updated on the final decision.
If you would like to discuss an employment or court of protection issue with us then please contact us at [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.