We have now had some time to reflect on the judgement handed down by the Supreme Court last week in the Mencap v Tomlinson-Blake sleep-in case.

Long awaited clarity…

 

We now know for certain that a person is not doing time work for the purposes of National Minimum Wage (NMW) unless they are awake for the purposes of working. The judgment reaches this conclusion by interpreting and clarifying Parliaments intentions behind the NMW regulations.

This is the end of the road for anybody hoping the judiciary would support the position that time spent asleep at work, when you can’t leave the premises by pain of discipline, should be defined as time work for NMW purposes.

Not a value judgement…

The Supreme Court judgement is not a value judgement, the decision is not saying care workers and PAs on sleep-in shifts are not working, neither does it endorse low pay for workers doing sleep-ins. The Supreme Court’s job was to interpret the existing NMW legislation and base their conclusions on this alone.
 
Arguably the path is now clear for those wishing to campaign for better pay for PAs and carers, a national rate for sleep-in shifts or change in the law to apply a national minimum wage to this kind of work.

No more back pay claims…

 

It was estimated that there would be back pay claims up to the value of £400m had the judgement gone the other way. Although disappointing to many carers and PAs who feel they have been underpaid for many years, the weight of these claims would have severely impacted the care industry at an already precarious time. The judgement means this outcome has been avoided.

What about Direct Payments…

Individual employers on a Direct Payment are subject to the same legislation as all other employers and the funding they receive is determined by their Local Authority or CCG. Funding bodies can now confidently allocate resources to cover sleep-in shifts below the NMW should they wish.
 
For new cases this is less problematic but for existing employers, who have been paying the NMW for every hour of a sleep-in, it is advisable to tread very carefully.  While a funding body may decide to act swiftly to reduce existing care packages, the employer cannot simply change their PAs contract without seeking their agreement first. Employers must be given time to consult with their PAs in the first instance.  Failure to recognise this could put individual employers at a genuine risk of a breach of contract claim which would otherwise by wholly avoidable. 

The linked advice note clarifies the legal issues raised by this judgement for Direct Payment advisors. 

MBL HE policy holders affected by this judgement should be advised to contact ILG Support directly using the details below.

ILG Support

Call: 01476 512 192

Email: advice@ilgsupport.com

ILG Sleep In Podcast

To supplement the ILG Support advice note, ILG’s head of legal, Rachel Harkin and DP specialist from MBL, David Ashley, are talking around the topic in their latest  episode.

This is the first in a series of recorded conversations discussing topics relevant to Direct Payments. We will be covering topics such as employment status and the application of TUPE in the DP world.
 
For those of you subscribed, the episode will be live this week or you can find out more here.