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Carers lose Supreme Court fight for minimum wage overnight and £400m in back pay

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Carers have lost a five-year legal battle to be paid minimum wage while they sleep at work during on-call shifts - and that means they can't claim for arrears going back yearsVideo UnavailableThousands of carers have lost a Supreme Court fight to be paid the minimum wage during overnight shifts - depriving them of an estimated £400million in back pay. faces desperate pleas to finally reform the system after the UK's highest court dismissed a claim for £8.91-an-hour when carers are sleeping, but on call, at their workplace. Justice Lady Arden said carer Clare Tomlinson-Blake - who first brought the challenge in 2016 - will not be able to claim for years of wage "arrears" she said she was owed. Ms Tomlinson-Blake, a carer for two autistic men in East Yorkshire, said after the grim ruling: "This case was never about the money. It was about the principle of treating staff fairly. "Sleep-in shifts aren’t about just being on call – it’s work. Staff are constantly on guard to protect the most vulnerable in society. The sound of a cough in the night could mean someone’s in danger. “It was nice to be clapped by the nation, but that was only temporary. The care workforce should be valued permanently. Respect for staff shows that the people we care for matter too." It comes after a landmark five-year legal battle by carers who sleep during an overnight shift - and have to wake up if needed. Five Supreme Court justices were asked to rule whether these "sleep-in" shifts should be paid the minimum wage. Are you a carer affected by this ruling? E-mail webnews@mirror.co.uk. Care firms including Mencap, who tried to stop the change, said the seismic case would have bankrupted small providers with a £400million back pay bill stretching back years. Care England added paying minimum wage for sleep-ins would have cost the sector £200million a year into the future. But a QC for Ms Tomlinson-Blake had argued she was "like a nightwatchman". Mencap paid her £29.05 per night for sleeping between 10pm and 7am while keeping a "listening ear" for any problems - and she was asked to intervene six times in 16 months. Mencap said it now pays minimum wage for sleep-ins, but would have faced a £15m back pay bill for previous years if the appeal had succeeded. The charity argued that cost, an estimated £400m across the industry, would hit small providers and individuals who pay out of personal budgets. and the GMB union, on the other hand, have demanded carers get paid what they deserve. And Mencap do accept the "out of date and unfair" rules need changing in the future, regardless of today's judgment. The row surrounded rules drawn up two decades ago, which said minimum wage only had to be paid in full while carers are awake.After two employment tribunals, including Ms Tomlinson-Blake's, new guidance in October 2016 said at-home carers should receive minimum wage even if they were asleep. But Mencap won a Court of Appeal ruling against that policy in July 2018. Ms Tomlinson-Blake then appealed to the Supreme Court, the highest legal authority in the UK. Carer John Shannon also brought an appeal to the Supreme Court, after he spent years sleeping overnight at the Clifton House care home in Surrey, but was also dismissed. He claimed if he had been paid minimum wage for all the time he slept on call, he could have been paid almost £240,000 extra. His case was repeatedly rejected, including today. The justices pointed out the Low Pay Commission had recommended sleep-in workers only receive an allowance, not the minimum wage. Lady Arden said "no one would doubt the importance in society today of carers" but said the definition of the law was "insufficient to lead to the conclusion that [a carer] was working" while asleep. Edel Harris, Chief Executive of the Royal Mencap Society, said: “Mencap contested this case because of the devastating unfunded back pay liabilities facing providers across the sector. "It is no exaggeration to say that if the ruling had been different, it would have severely impacted on a sector which is already underfunded and stretched to breaking point. "Some providers would have gone bust and, ultimately, the people who rely on care would have suffered. “We believe that the legislation covering sleep-in payments is out of date and unfair and we call on Government to reform it. "More widely, they should do a thorough and meaningful review of the social care workforce and put more money into the system so that we can pay our hardworking colleagues better. "It is disappointing that there is still no plan for social care reform." Paul Chamberlain, Head of Employment at JMW Solicitors, said the industry "will be breathing a huge sigh of relief" but carers "will be sorely disappointed". Sue Harris, Legal Director for the GMB union, said: "Many people will be surprised by today’s ruling. “It essentially means if you are at your employers’ premises - not at your home - able to sleep, but know you may be disturbed at any time during that sleep, then those hours don't count for the purposes of working time. “Not many people would be able to get any decent sleep knowing they could be called to action at any moment. “We have seen throughout the pandemic the wonderful work that carers do, they are the group in our society most likely to be on the minimum wage and that they are predominantly women and predominantly Black, Asian, Minority Ethnic employees. “This was a chance to address one of the reasons for the low pay of carers. It's a shame it wasn't seized upon.” UNISON general secretary Christina McAnea said: “No one is a winner from today’s judgment. "Everyone loses until the government intervenes to mend a broken system that relies on paying skilled staff a pittance. “Today's judgment shows ministers can’t disregard the desperate need for major reform a moment longer." Liz Kendall, Labour’s Shadow Minister for Social Care, said: "It’s extremely disappointing that the Supreme Court came to this decision. "Care workers do a highly skilled and difficult role and they should be paid fairly for every hour of the work they do. “Crucially, no care workers should see their pay fall as a result of this ruling and it is imperative that the Government and works with care providers and trade unions to ensure this is the case." Downing Street said social care reforms are due “later this year”, but repeatedly failed to say if Boris Johnson will reform pay for sleep-in shifts. Instead, a No10 spokesman issued general platitudes, saying: “We are aware of the judgment from the Supreme Court. “Care workers perform a vital role and they have worked tirelessly throughout the pandemic to support our most vulnerable. “We are absolutely committed to supporting them.”Follow MORE ON

Carers have lost a five-year legal battle to be paid minimum wage while they sleep at work during on-call shifts - and that means they can't claim for arrears going back yearsVideo UnavailableThousands of carers have lost a Supreme Court fight to be paid the minimum wage during overnight shifts - depriving them of an estimated £400million in back pay. faces desperate pleas to finally reform the system after the UK's highest court dismissed a claim for £8.91-an-hour when carers are sleeping, but on call, at their workplace. Justice Lady Arden said carer Clare Tomlinson-Blake - who first...

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Carers lose Supreme Court fight for minimum wage overnight and £400m in back pay

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