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Sleep-ins and the National Minimum Wage - Uncertainty Continues

on Tuesday, 05 March 2019.

On 13 February, the Supreme Court granted permission for an appeal against the Court of Appeal judgment in the case of Royal Mencap Society v Tomlinson-Blake EWCA Civ 1641, in relation to care workers on sleep-in shifts.

It had been argued on behalf of care worker Clare Tomlinson-Blake that sleep-in shifts should count as working time and care workers should be paid at least the National Minimum Wage rate for the hours they worked. Ms Tomlinson-Blake was successful at the Employment Tribunal and the Employment Appeal Tribunal, but in July last year the Court of Appeal found in favour of Mencap.

Response to the news that leave to appeal was granted has been mixed. A Supreme Court judgment should clarify a complex and uncertain area of the law which has presented care providers with difficulties for many years. However, the appeal is not likely to be heard until late 2019 or 2020. That means a further period of uncertainty, which will not be welcomed by care providers, care workers or commissioning authorities.

Until the legal position is clarified, charities delivering care should not make any changes to their 'sleep-in' arrangements without seeking professional advice.

For more information on this topic please contact Kathy Halliday in our Employment Law team, on 0121 227 3711.