‘Sleep Ins’ Mencap Appeal

The Court of Appeal judgement in the case of Mencap v Tomlinson-Blake handed down today Friday 13th July, on the case of backdated sleep ins liabilities, has decided in favour of Mencap that it is only time spent awake and working which is counted as working time during a sleep in. We believe this is the right outcome based on the law.

The successful Appeal, in which Care England was an intervener, finally gives a clear steer with respect to historic liabilities for sleep in shifts. The Court decided that sleep ins fall into the exception as being ‘only available for work’ according to Regulation 32 and as such the National Minimum Wage (NMW) would only be payable when the person was awake and working and not while asleep. This has always been our understanding and after years of uncertainty brought about by conflicting employment tribunal decisions and confusing Government guidance we can at last be confident providers have the correct framework within which to make decisions on remuneration of sleep in shifts provided there is no Supreme Court Appeal.

The Government must now act speedily to give direction to ensure the original regulations are now relied upon as the basis for HMRC and employers to act. The status of the national Social Care Compliance Scheme (SCCS) and the obligations of providers registered within it must be clarified as soon as possible.

Care England, the largest representative body for independent providers of adult social care, has long argued for better funding for social care, which is still of fundamental importance to ensure all social care employees can be paid more and that the sector can continue to attract and retain high quality staff.

Professor Martin Green OBE, Chief Executive of Care England says:

“We welcome the Appeal Court ruling and hope we can now move forward, without a huge back pay liability hanging over the sector and threatening the ongoing care of thousands, to ensure we focus on getting social care services funded properly for the future.”