Thousands of carers have lost a Supreme Court fight to be paid the minimum wage during overnight shifts – depriving them of an estimated £400million in back pay.
Supreme Court justice Lady Arden dismissed carers’ claim for £8.91-an-hour for over-23s when they are sleeping, but on call, during the night.
It comes after a landmark five-year legal battle by carers who sleep during an overnight shift – and have to wake up if needed. Five Supreme Court justices were asked to rule whether these “sleep-in” shifts should be paid the minimum wage.
Care firms including Mencap, who tried to stop the change, said the seismic case could have bankrupted small providers with an estimated £400million back pay bill stretching back several years.
Care England added paying minimum wage for sleep-ins could have cost the sector £200million a year into the future.
But a QC for Claire Tomlinson-Blake, a carer for two autistic men in East Yorkshire who first brought the case in 2016, had argued she was “like a nightwatchman”.
Mencap paid her £29.05 per night for sleeping between 10pm and 7am while keeping a “listening ear” for any problems – and she was asked to intervene six times in 16 months.
Mencap said it now pays minimum wage for sleep-ins, but would have faced a £15m back pay bill for previous years if the appeal had succeeded.
The charity argued that cost, an estimated £400m across the industry, would hit small providers and individuals who pay out of personal budgets.
Labour and the GMB union, on the other hand, have demanded carers get paid what they deserve. Mencap accept the “out of date and unfair” rules need changing in the future, regardless of today’s judgment.
The row surrounded rules drawn up two decades ago, which said minimum wage only had to be paid in full while carers are awake.
After two employment tribunals, including Ms Tomlinson-Blake’s, new guidance in October 2016 said at-home carers should receive minimum wage even if they were asleep.
But Mencap won a Court of Appeal ruling against that policy in July 2018. Ms Tomlinson-Blake then appealed to the Supreme Court, the highest legal authority in the UK.
Carer John Shannon also brought his appeal to the same Supreme Court case, after he spent years sleeping overnight at the Clifton House care home in Surrey.
He claimed if he had been paid minimum wage for all the time he slept on call, he could have been paid almost £240,000 extra. However, unlike Ms Tomlinson-Blake, his case was rejected by the original tribunal.