Another couple of long running cases have recently been decided, Mencap v Tomlinson-Blake and Shannon v Rampersad. Both concern the pay of workers in a caring role when they are asleep but available to give care.
Ms Tomlinson-Blake was employed by Mencap. She was occasionally required to sleep-in at a home for vulnerable adults in case her assistance was required during the night. She claimed payment for her sleep-in shifts, not just when she was working but when she was asleep. Mr Shannon lived on the top floor of a care home. He agreed to always be home between 10pm and 7am in case the night staff required assistance. He received a small payment and paid neither rent nor services for the flat. He too claimed payment for the entirety of his sleep-ins.
In 2109 the Employment Appeal Tribunal upheld Ms Tomlinson-Blake’s claim to be paid when she was asleep but denied Mr Shannon’s claim. As a result, there were fears the sector would face claims for back pay of national minimum wage of £400m.
Mencap appealed as did Mr Shannon. The appeals were heard together. The Court held that although Ms Tomlinson-Blake and Mr Shannon were “available” for work when sleeping, they were not “working”. Unison sought leave to appeal.
Ms Tomlinson-Blake and Mr Shannon’s claims failed at the final hurdle of the Supreme Court. The Court distinguished between “actual work” and “availability for work” and held that the national minimum wage is only payable when the worker is awake and dealing with care needs.
Mencap states it only fought these cases because of the historical burden of underpaid national minimum wage and the devastating effect this would have on the sector and society at large. The charity pays its workers for sleep ins.
Mencap and Unison, although on opposing sides in the litigation, have written jointly to the Prime Minster calling for immediate reform of minimum wage laws affecting thousands of care workers. They said they are “united in the same vision” of a “properly funded care sector” and that “paying staff decent wages is a major part of this”. The Supreme Court’s finding is a “huge blow” to care workers and is likely to mean they will earn less.
For more information or to speak with Roy Magara, a specialist employment lawyer at Magara Law, please call 01869 325 883 or email roy@magaralaw.co.uk. Magara law is an employment law firm based in Bicester, Banbury and Paddington, London, and services clients nationwide.
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