By Lucy Law, senior HR manager at Hugh Jones Solicitors (www.hughjonessolicitors.co.uk)
Last month saw the end of a long- running UNISON-backed case taken on behalf of care worker Clare Tomlinson-Blake against her former employer Mencap. Ms Tomlinson- Blake argued that every hour of her sleep-in shifts should be paid at the rate of National Minimum Wage.
The Supreme Court ruled that for the purposes of the National Minimum Wage, the number of hours worked excludes the hours workers are permitted to sleep unless they are awake for the pur- pose of working. The ruling applies across England and Wales for all staff doing sleep-in shifts in the care sector, and potentially similar sleep-in shifts in other sectors.
The landmark appeal will have a major effect on both staff and employers but what’s the true impact? Here, Lucy Law, senior HR man- ager at Hugh Jones Solicitors, delves a little deeper into the decision.
“The truth is, there’s no real winner here. The ruling has settled a long-standing legal debate, but it raises concerns for both parties. The cost to the care sector for backpay liabilities was estimated to be as great as £400 million, potentially threatening the viability of many care providers so for employers, the initial response was likely one of relief. If the ruling had been different, it would have pushed a sector which is already underfunded to breaking point and some providers could have gone bust. That said, there are anxieties around the possible reactions of local authority commissioners which could see funding reduced, and therefore the pay of staff affected.
“Care workers are naturally nervous about the potential for change. Traditionally, most will have received a flat rate payment for each sleep- in shift which was topped up when they were awake and providing care or support. They will have a built up custom and practice of pay which, over time, will have become a basis for their lifestyle and expenditure. A sudden – possibly drastic – drop in wages could be devastating.
“Care providers must take responsibility to understand the true mean- ing of a sleep-in shift and appreciate how widely the role varies for each individual. Respecting this difference is key in any decisions based on this ruling, it means being transparent about the level of care that the sleep-in shift worker provides against an individuals’ care and support needs. What really matters is that clients receive the quality care they deserve. Any decisions that could generate low morale among care workers, affect staff retention and therefore impact the level of service provided, must be avoided.
“When it comes to direct employment, situations are reviewed individually. One size does not fit all and in spite of the ruling, the same basic employment principles and good practice apply in the interests of being fair and reasonable to employees. This approach ultimately lends to the retention of long-standing, trusted support staff and the security and continuity of support for clients who have built trusting relationships that, where financially viable, should be retained.
“There are so many variants in the case of sleep-in shifts, so I’d urge any employer to err on the side of caution prior to any engagement in reduction of wages based on the ruling alone. Preparation is key, as a change to terms without agreement still remains a high risk procedure that could result in a claim at tribunal.
“The ruling has very much called into question the human element of human resources and morally, employers must seriously consider whether a reduction in pay can be justified as fair and reasonable in both consultation and practice.”