The Supreme Court has permitted an appeal against last year’s Court of Appeal ruling on sleep in payments for care workers.

Last year, the Court of Appeal overturned the decision of a 2015 employment tribunal that found former Mencap care worker Claire Tomlinson-Blake was entitled to receive the National Minimum Wage for each hour of sleep-in shifts completed, plus six years of back payments. Please click here for our summary of that decision and its implications.

Care providers had previously typically paid sleep-ins a flat rate of between £35 and £45, plus an hourly rate for any time spent providing care rather than sleeping.

But in August the trade union Unison applied to appeal the Court of Appeal’s decision, and the Supreme Court has now allowed that appeal to go ahead.

The Court of Appeal ruling set out that sleep-in care workers were not entitled to the NMW for hours they spent asleep  but only for hours that they were awake for the purposes of working.

Mencap estimated that the original tribunal ruling would have cost it £20m and the wider care sector £400m if it had not been challenged.

The ruling creates more uncertainty for the care sector. We are aware that many providers have continued to pay or reverted to flat rates of pay for sleep ins. We await to see what the Supreme Court decides but if the appeal is upheld it could have financial implications for those providers, and for all providers, who have calculated potential back pay based on the Court of Appeal decision and submitted their calculations to HMRC as part of the Social Care Compliance Scheme.

A date for the Supreme Court hearing has yet to be set.

We shall update the position on this appeal in due course. In the meantime, please direct any queries you may have to Jodie Sinclair or Mike Smith.

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