But which way will the Supreme Court go?
Amongst the many operational issues currently occupying the head space of care home operators, owners or an investor seeking to acquire a provider is the much anticipated Supreme Court decision in Royal Mencap Society v Tomlinson-Blake concerning the issue of sleep-ins and working time. The decision is expected soon but there is nothing on the Supreme Court’s website to provide us with further clarity.
Back in July 2018 the Court of Appeal ruled that sleep-in workers are only entitled to the national minimum wage (NMW) while they are “awake for the purposes of working”. However this ruling was appealed to the Supreme Court in February this year, creating further uncertainty for the sector.
Ultimately social care providers will need to brace themselves for action: whether the decision is favourable to Mencap or not. Social care providers operating sleep-ins may wish to re-visit their workers’ terms and conditions and take further legal advice on their NMW compliance, as appropriate. Providers will need to consider what their potential exposure could be if the decision goes against Mencap and what plans will need to be put in place to ensure NMW compliance moving forward.
As an immediate step, care providers may wish to consider their workforce communication strategy, pending the Supreme Court’s decision, given staff are likely to have a number of questions about their organisation’s future approach to sleep-ins depending on which way the decision goes.
Do get in touch with our employment team if you would like to discuss your organisation’s plans.
Stuart Craig and Joanna Burrows