The Supreme Court has set a date in February next year to hear an appeal against a landmark ruling made in favour of Mencap. It will hear the latest appeal of the Royal Mencap Society v Tomlinson-Blake on 12 and 13 February 2020, with a decision expected by July that year. Mencap’s case has wide implications for all social care providers, including many charities, who have estimated they could be hit by a collective £400m bill if the charity were to lose. The Royal Mencap Society v Tomlinson-Blake case relates to social care workers on “sleep-in shifts”, whereby they provide overnight on-call support to patients but are expected to sleep through the majority of the shift. For these shifts, employers like Mencap historically paid flat-rate fees at rates below the minimum wage.
Former Mencap employee Clare Tomlinson-Blake successfully challenged the legality of this, with employment tribunal hearings in 2016 and 2017 ruling that she was entitled to back-pay for historic underpayment. However, this was overturned by judges in the Court of Appeal last year, to the relief of some charities as it meant that they would not have to foot large back-pay bills to workers. Unison, which represents Tomlinson-Blake, was granted permission by the Supreme Court to appeal the Court of Appeal ruling earlier this year and now a date for the hearing has been set. Further implications in addition to the threat of a potentially sizeable back-pay bill, the case also has implications for government policy on payments to sleep-in shift workers going forward.
The government published guidance stating that sleep-in shift care workers were entitled to the full minimum wage following Tomlinson-Blake’s successful employment tribunal hearings. However, it updated its guidance last year following after the Court of Appeal overturned the ruling, and now says that sleep-in shift workers are not necessarily entitled to the full minimum wage. But the government has also included a caveat that if the Supreme Court rules in favour of Tomlinson-Blake, its guidance could change once more.
Rhidian Hughes, chief executive of the Voluntary Organisations Disability Group, has criticised this approach and today called for the government to introduce a rate of pay for time spent asleep. Many councils had increased funding to social care providers following Tomlinson-Blake’s successful hearings but Hughes said some had cut this extra funding since the Court of Appeal ruling. He said: “While we wait for the legal case to be heard, commissioners and providers should be working together to ensure stability in the provision of overnight services. “This collaboration is happening in a number of areas. But in other areas there are examples of knee jerk reductions in the fees commissioners pay to providers for overnight support. These fee reductions risk damaging services and adding further pressure to the sector’s workforce retention and recruitment challenges.” Providers ‘could hand back contracts.’
Meanwhile, a social care charity that has faced ongoing strike action over its decision to cut pay for sleep-in shift workers following the Court of Appeal ruling has warned that providers will be forced to hand back contracts if social care funding is not increased. Alternative Futures Group (AFG), which is currently experiencing a walk out from 151 of its staff, has said its previous policy of paying the minimum wage for sleep-in shifts had led to it incurring a £8.1m deficit over four years. The charity has exchanged letters with Sarah Wollaston, chair of the health and social care select committee, Crewe and Nantwich MP Laura Smith and Wirral South MP Alison McGovern, calling on them to press government to increase funding for social care. Ian Pritchard, the charity’s chief executive, said: “I think the message is getting through. It’s plain that funding needs to increase both for the benefit of dedicated support workers and to ensure a professional standard of care in the future. “Otherwise, unfortunately many more service providers will have to hand back contracts to commissioners. “AFG is absolutely committed to raising this issue at the highest level to secure adequate funding. But this is a national, not just a local issue. “And this needs everyone’s involvement – government, local authorities, service providers and the unions to come together to agree a sustainable funding solution for the future. This cannot be kicked into the long grass any longer.”