Sleep walking to sleep in disaster

The recent decision by the Employment Appeal Tribunal in favour of an employee over their employer has put further pressure on care providers already struggling to make ends meet.

In a case heard along with two similar others, a Royal Mencap Society employee successfully demonstrated that, as a carer performing a sleep-in shift, she was working during the whole shift and therefore entitled to receive the National Minimum Wage for the whole time she was at work, not just her waking hours.

This issue has been bubbling since HMRC decided to pursue these cases in a pure payment per hour sense, rather than looking at the whole shift, or indeed in the context of the pressure on the care sector. The outcome of this is that, although HMRC states that each case will be heard on a case by case basis, providers are increasing pressure to pay a full waking night hourly wage rate, rather than a lump sum as is the case now.

Therefore, the issue for the care sector of paying NMW per hour for every sleep-in shift performed rather than a fixed allowance for the whole night which is adopted by many care sector organisations, is now under intense scrutiny.

The EAT concluded that it could not provide a clear sense of right and wrong and the case does not necessarily set a clean precedent. Instead a multi-point approach was recommended as a guide to providers, as described in the following guidance. When calculating the sleep-in wage rate, providers should describe:

  • the employer’s purpose such as having someone present due to regulatory or contractual requirements;
  • the extent to which the worker is restricted by the requirement to remain on the premises including whether disciplinary action would ensue if they were to leave;
  • the degree of responsibility of the worker ie. contrasting a duty to simply make an emergency services call with the position of a night sleeper in the home of a disabled person with a more significant personal responsibility in relation to the night duties that might have to be performed; and
  • the immediacy of the need for the worker to provide services or intervene if something untoward occurs or an emergency arises.

In Oxfordshire, OACP has already worked with providers and the Council to ensure steps have been taken to ensure providers are supported going forward. However, the risk of back-payment penalties is a real one and can only be defused by national government, since the amount to cover the whole sector would not only put providers out of business, but may make many local authorities bankrupt at the same time.

Sadly, Government does not appear to have a grip. Care Minister, David Mowat MP, described the situation as an unexpected outcome to the NMW rules and a “£200m-ish headache”. It may be resolved by over-the-counter pain-killers for Government ministers, but this issue risks the whole care sector going into cardiac arrest, unless Government resolves conflicting policy.