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Jamie McCabe

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Supreme Court hands down decision about sleep-in carer wages

Client Alerts22/03/2021

The insurance industry can breathe a collective sigh of relief after the long-awaited judgment in the case of Royal Mencap Society –v- Tomlinson-Blake [2021] UKSC 8  was handed down.

This employment law case about the calculation of pay for sleep-in carers had serious collateral ramifications about awards for future care in life-changing personal injury cases.

The judgment was of particular importance to the care industry and marks the end of a four-year legal battle that threatened to leave care providers with a possible £400 million back-pay bill potentially jeopardising the care of vulnerable people. Since the original court ruling in 2017, many sleep-in care workers have been paid an hourly rate rather than a flat rate, in effect doubling the cost of the shift to about £70. The Supreme Court ruling has led to concern that some providers will revert to the £35 flat rate that was in operation some years earlier.

The Facts

There were two claims by different carers for additional wages. 

Mrs Tomlinson-Blake was a highly qualified care support worker employed by Mencap from 2004-2017.  She was a part of a team providing 24/7 care to two vulnerable adults in their own home.  During her sleep-in shift she was required to “keep a listening ear” even whilst asleep.  She had to attend any emergency if there was one but the evidence was she was only disturbed six times in the preceding three months.  She received £29.05 for each sleep-in shift but argued that the National Minimum Wage (NMW) should have applied to all the hours she was working including those whilst asleep.  The NMW in 2015 was £6.70 and therefore for a 10-hour sleep in shift she would have received £66.70 per night not £29.05, i.e. more than double.

Mr Shannon was an on-call night assistant in a residential care home. From 1993 he had free accommodation and a weekly payment which started at £50 per week but rose to £90. It was a condition of his employment that he was in the accommodation from 10pm-7am but he was permitted to sleep during that time. The night duty care worker was entitled to call upon him for emergency assistance but rarely did. When Mr Shannon was dismissed he brought a claim for £240,000 arguing that he should have received NMW for all nights on call.

Lady Arden interpreted the statutes and regulations relating to NMW.

She essentially affirmed and extended the decision of the Court of Appeal by finding against both care workers, concluding that they were not entitled to claim NMW for their sleep-in shifts in accordance with the special rules contained in the regulations for sleep-in workers. She concluded that the regulations meant that carers were:

  1. Not doing work if they were asleep.
  2. Not doing work unless they were awake for the purpose of working.

Therefore, it was necessary to look at the arrangements between the employer and the worker to see what the worker was required to do when not asleep but within the hours of the sleep-in shift.

If the employer gave the worker the hours in question as time to sleep and the only requirement was to respond to emergency calls, the worker’s time in those hours could not be included in the NMW calculation for time worked unless the worker actually answered an emergency call.  In that situation, only the time spent in answering the emergency call could be included. It followed that irrespective of the number of occasions a sleep-in worker woke to answer emergency calls, the whole of the shift was not included for NMW purposes – only the period for which the carer was awake.

National Minimum Wage (NMW)

The NMW changes every April and from April 2021, the applicable rates are as follows:

Age

Rate

23 and over

£8.91

21-22

£8.36

18-20

£6.56

Under 18

£4.62

Apprentice

£4.30


Ramifications for life-changing injury cases

Sleep-in care regimes are commonplace in life-changing injury cases. Despite having a serious spinal cord injury or traumatic brain injury, there are cases where the reasonable needs of the injured person are met by a sleep-in carer if there is no need for regular intervention during the night e.g. turning in bed (to avoid pressure sores), continence management or to deal with unpredictable behaviour. Alternatively, in some complex care packages where “double up” care is required, there may be a waking night carer, with a sleep-in carer as backup.

The current position is that night sleepers are paid on a number of different bases.  Many care packages are based upon a night sleeper working for 10 hours but being paid for six. In some packages where the night lasts for 12 hours, payment might be for eight.

Some packages apply an hourly rate for day care to the night time so that, for example if the day rate is £10 per hour, then the cost of night time care could be £60 (10 hours but paid for six at £10 per hour).  It can be seen that compared with such a package, the carer being paid NMW for all hours on duty would receive £89.10 per night (10 x £8.91) as compared to £60 – an increase of £29.10 per night or 48.5%.

However, the rates sought in packages for complex TBI or serious SCI cases are often higher than £10 per hour, consequently the difference in wages between NMW for all hours worked and existing hourly rates would not be as pronounced.

The annual cost of sleep-in care may vary significantly according to the circumstances of each case and can exceed £30,000 per annum and above.

If the court had found that all hours of sleep-in care were to be paid at NMW, it is likely that the cost of such care would have significantly increased. In cases of long life expectancy where multipliers for future care can exceed 70 with a discount rate of -0.25%, the difference in damages may have run to seven figures in some cases.

However, the judgment of Lady Arden provides clarity that sleep-in carers are a special case as far as NMW regulations are concerned and that time spent asleep (even if the carer may be woken to assist) are not to be counted towards calculating NMW.

It remains to be seen whether the government will come under pressure to reform the law in this area to provide greater statutory protection to sleep-in workers.

Live-in care packages

Although there has been a line of case law against live-in care packages, such arrangements still find favour in suitable circumstances. The Working Time Regulations 1998 require that the carer has 24 hours off in every seven days, four hours off every day and eight hours in every two days.  A live-in carer may be the best solution for someone who genuinely does not require round the clock supervision and can work in some SCI claims but is more difficult for TBI cases. A live-in carer can also provide flexibility to the injured person in avoiding difficulties often experienced especially at times of shift change with multiple carers.

There are interesting questions as to whether the Working Time Regulations will be amended post-Brexit. Some commentators take the view that although the Regulations are unlikely to be revoked there is scope for greater exemption to provide flexibility in allowing live-in care packages.

The cost of a live-in carer varies according to the case and location. Typically, a live-in carer may cost £1,200 - £1,400 per week and can therefore be a cost effective solution in the right case.

There will undoubtedly be interesting discussions and negotiations ahead about how to meet the reasonable care needs of those who have suffered catastrophic injuries.