That was the decision of the Court of Appeal in two cases that have major implications for residential care homes.
Care workers who sleep overnight in or near a care home while on duty are often paid a flat fee, typically around £30.
Claire Tomlinson-Blake, who worked for Mencap with vulnerable adults in Yorkshire, challenged the flat fee payment, arguing that she was required to use a “listening ear” even when she was asleep.
She said she was technically working so was entitled to the minimum wage.
The Employment Tribunal ruled in her favour.
The government then told the charities they must reimburse their past and present workers for up to six years’ worth of underpayment, a bill that could have run to £400m.
The back payments, as well as the obligation to increase current wages, left a huge burden on the charities and many care homes said they would have to close.
The Mencap case, and a similar one involving Care England, went to the Court of Appeal, which ruled that care workers on sleep-in shifts were ‘available to work’ rather than working.
They were not entitled to minimum wage unless they were awake for the purpose of working.
For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email [email protected]
