Legal Comment on the Supreme Court Case on Sleep-in Shifts in the Social Care Sector

Speaking on the sleep-in shifts Supreme Court case, Matthew Wort, partner at Anthony Collins Solicitors, said:

“The Supreme Court case on sleep-in shifts is an opportunity to finally put to bed a three-year legal battle and the related uncertainty for care providers across the country.

“There, however, remains a clear need for the social care sector to receive further investment to ensure it is possible to recruit and retain a dedicated workforce, but that is not something the Supreme Court is being asked to consider.

“This case is not about what care workers should be paid, rather it is focusing on the interpretation of National Minimum Wage Regulations. The law appears to make clear that employees are not working while asleep and Government guidance in place for many years backed that up.

“It is not the Supreme Court’s role to decide on public policy grounds what the law should be, but to interpret the legislation to reflect the intention of Parliament when the Regulations were introduced. For that reason, I consider it should accept that time spent asleep during a sleep-in shift does not attract the National Minimum Wage. However, should the Supreme Court agree that care workers are not entitled to National Minimum Wage while asleep, there will still need to be a change in how workers are remunerated. This is to ensure all workers are paid appropriately for time asleep.

“I believe the Low Pay Commission should be responsible for setting a regulated minimum rate for time spent sleeping which is fair for both care providers and employees. This will support maintaining healthy care market conditions, with a pool of providers able to viably deliver services of appropriate quality.

“While resolving the sleep-in shifts case will deliver short-term certainty for providers, increased investment from central Government remains key to securing the future of the social care sector. Action must be taken and resources provided to guarantee the quality care people across the UK deserve.

“If the Supreme Court decides that the law does require National Minimum Wage payment to care workers while they are sleeping, it will mean care providers having to assess their payments to workers over the last six years with the potential of HMRC enforcement action against them. Should this be the case, HMRC must establish a new social care compliance scheme, allowing care providers time to calculate any potential back-pay liability and waiving any penalties that might otherwise be due. It would be unjust for care providers to be penalised in circumstances when their pay practice reflected BEIS and HMRC guidance.

“I also consider that the Government should act to ensure commissioners that have paid care providers to ensure a 24-hour service presence at a rate less than National Minimum Wage accept their role in the situation. Care providers should be compensated for the shortfall in funding to cover any historic liabilities which may be created by the Supreme Court judgement.”