When is being at work not being at work?
Sounds like a daft question doesn’t it? But a recent Court of Appeal ruling has thrown the issue up in the air and made life a lot more uncertain for a huge number of workers.
The case revolved around the rights of care workers who have to spend the night at their client’s homes, sleeping in so that they are on hand in the event of an emergency.
Unions argued that because the workers were still on-call they should be paid at least the minimum wage for the hours they were asleep.
But the CoA ruled in a case brought by Mencap that working hours should only apply for those periods the carer is awake.
The ruling means that carers will not be able to claim for millions of pounds of back pay – something Mencap argued would cost around £400m and was unaffordable.
The ruling leaves in doubt the rate that carers should be paid for sleep-ins, although Mencap has stressed it now pays the minimum wage to cover periods of sleep and will continue to do so.
The case revolved around the complexities of the National Minimum Wage regulations and what was, and was not, considered work.
Lord Justice Underhill ruled that “sleep-in” residential care workers are only entitled to the National Minimum Wage when they are awake and “actually working.” When they are asleep, they are, he held, simply “available for work” and not entitled to be paid the NMW.
Charities have called for the Government to review the law in the light of the ruling and provide clarity on what rate should be paid for sleep-ins.
A Government spokesman said: “We are considering the judgment and will comment shortly on its implications.”
Care workers union Unison has already said that it will take the case to the Supreme Court to try to get the latest ruling overturned.
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