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Care Workers’ Rights While Sleeping Over – The Rules On Pay

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Care workers are being denied access to the National Minimum Wage for their hours spent asleep during an overnight shift.

In March, a court ruled in favour of learning disability charity Mencap, dismissing claims brought by two of its former employees they were entitled to the minimum wage while asleep, instead, favouring the employer’s defence to pay only the statutory amount during their hours awake.

The ruling brings a five-year battle between Mencap and Clare Tomlinson-Blake – later, joined by a second claimant, John Shannon – to a close, clearing the company of any rights to repay the former workers earnings missed during their tenure and setting a precedent to all UK-based care homes moving forward.

Care providers nationally are celebrating the result, which provides absolute clarity as to how their care workers are compensated, an area previously dowsed in uncertainty. It also secures the financial situation for many facilities; had the workers’ claims been successful, the estimated bill for care homes stood at £400 million, a figure Mencap suggested would have caused severe financial implications for larger organisations like theirs while bankrupting countless smaller ones.

It’s less celebratory for care workers such as Tomlinson-Blake, who feels others like her should be compensated fairly for overnight shifts, whether they’re awake or asleep, with staff available in emergencies and therefore ‘working’ to protect society’s most vulnerable.

It falls at a particularly difficult time for many within a sector already famed for its unattractive rates of pay, with care workers under increasing pressure during the Covid-19 pandemic, forced to work for longer hours in an environment where exposure to the virus has been much greater than it has elsewhere.

Before her original court-hearing in 2017 – when Tomlinson-Blake first raised a claim against Mencap – care workers were paid a flat rate of £35 for night-shifts. After that hearing, it was suggested workers be paid by the hour, and at the national minimum wage rate, in effect doubling their pay to around £70 per shift. Yet a ruling for employers to provide the pay gap in back payments for up to six years announced at the same hearing was later reversed, giving a green light to employers to revert to their original lesser flat rate of pay – something that looks unlikely to change in the wake of the latest ruling in March.

Others, however, are choosing to pay their staff at an increased rate regardless of the guidance and one they feel equates to the value each employee brings to their role. It’s a trend the Voluntary Organisations Disability Group (VODG) hopes will eventually extend wider, as they call on the government to establish a standard fair rate of pay for all overnight care workers, preventing further damage to the sector in the wake of the recent court ruling.

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