Caring for an individual can be a difficult task. It's tiring, it's draining, and when it comes to a point of hiring a person to look after that individual you think you can finally have a break. A rest, Time for you. It's not that easy.
What comes with hiring someone to look after loved ones is all the legal implications that come with it. Sometimes going through an agency, makes things easier, but that still does not take the legal implications off of you nor off the care company.
With night-time care there are different shifts available; waking nights which does what it says on the tin, the carer is awake the whole time and sleep-in shifts. During a sleep-in shift, the carer will be on the premises of the cared for and will keep a ‘listening ear out’ for any emergencies. The average wage for a sleep-in shift was £35.00.
In 2017 a group of care workers in different situations but all having similar duties took their employers to the Employment Appeal Tribunal as they believed they were entitled to minimum wage whilst on-site at their place of work.
Focus Care Agency Ltd v Roberts. Royal Mencap Society v Tomlinson-Blake. Frudd v Partington Group Ltd.  4 WLUK 399
In the case of Roberts and Tomlinson-Blake, they both had the duty of looking after vulnerable adults in their own homes, and overnight they would sleep in and listen out in cases of emergencies. In the case of Frudd, they resided on the premises at a caravan site.
Being a carer is no easy task. You have the responsibility of a person in your sole care. You may be asleep, but you are always listening out, every sound wondering if they need you, if they are in trouble. It’s not necessary that is what is in your job description after all it is a sleep-in night, but that is why you are in the care profession because you care, but who is responsible for paying for you to care and if so, how much?
That has long been a question asked for both the loved one’s family and the carers. Most carers in the £35 per night check are allowed to get up twice as long as they are not up for more than an hour at a time. For others such as Mrs Tomlinson-Blake got paid if she was awake for more than one hour.
These questions seemed to finally be brought to task at the Employment tribunal, where for Tomlinson-Blake and Roberts it was decided under reg 30 of the National Minimum wage regulation 2015 that the whole period of time spent at the place of work for a sleep-in shift constituted work and therefore they were entitled to the NMW.
Mencap took the case to the Court of Appeal. Alongside them in a similar case of Shannon v Rampersad (t/a Clifton House Residential Home)  9 WLUK 482, which had been heard in 2015 where the employee had lost the case.
Both cases had regard to the National Minimum Wage regulation. However, one relied upon the 1999 regulation and the other one on the later 2015 regulation. Both regulations relied upon the fact of actual work and availability of work. Did sleep-in work mean that the carers were available for actual work? It was decided that sleep-in shifts fell under the exemptions of regs 15A/32 (2) which states ‘the only time that counted for NMW purposes was when the worker was required to be awake for the purposes of working’.
The outcome for the Court of Appeal was that both Tomlinson-Blake and Shannon who were both the employees in the cases were treated as only 'available' for work, which meant that only the hours they were required to be awake for the purposes of work counted for NMW purposes.
Both employees took their cases to the Supreme Court. Sadly, during the course of preparing judgement Lord Kerr passed away. Under s.43.2 of the Constitutional Reform Act 2005 the court continued with judgement with the four remaining justices.
All four justices, dismissed the appeal in a unanimous decision in March of this year, coming to the same conclusion as those by the Court of Appeal.
As the courts directed, this was not an easy decision to make. Carers are the backbone of our society. They are some of the hardest working people out there and are there to look after our loved ones when for whatever reason we cannot. They deserve to be rewarded.
However, on the other side of the table, it could have been the downfall of the care system. Carers would have been able to claim back for non-payment of wages, meaning care companies could have seen claims for thousands of pounds from multiple employees. These firms would have been unable to claim back from clients, and where the firm is a small organisation may not have been able to continue operating, so rather than paying the bill may have had to go out of service altogether. This would have put a strain on the little service facilities there already are out there.
Another sector that is breathing a sigh of relief is personal injury solicitors. In calculating damages in a clam, care needs are considered for compensation. So, for someone that is left after an accident needing night care for the 30 years would have it calculated at £35 x 365 = £12,775 x 30 = £383,250 this is without calculating extra for bank holidays, Christmas Day, Easter Sunday etc. Inflation is taken into consideration so this figure may change slightly again. Now look at it from a NMW view, £8.90ph x 8hr x 365 = £25,988 x 30 = £779,640. Again, double the £8.90 to £17.80ph for bank holidays, Christmas Day, Easter, Sunday etc and that figures get higher again. It may open the flood gates for future claims to open up for care costs once again.
The ruling is a double-edged sword, on one hand, these hard-working individuals need the recognition they deserve for the continued dedication for an under-funded and over-worked sector. On the other hand, if the judgement had gone the other way it could have been seen the collapse of already overstretched care providers.
One thing is for sure though is that something in this sector has to be done and soon. These amazing people have been on the frontline during the pandemic, holding the hands of the cared for as they sadly pass away when loved ones could not be there. The government must realise that something has to be done. I believe we are past the stage of throwing money at the system, with a growing population it seems we are on a never-ending merry-go-round with no end in sight and it is hard to see if and where the way out is.
As it stands some employers continue to pay at NPW rate after the initial ruling at the employment appeal tribunal, which if changed now would mean many carers would lose up to £160 per month, others continue to pay at the £35 per night.
If anything should come from this case, it is that changes need to be made, for whatever way you go there will be losers, normally the carers and the cared-for suffering the most.
Read the full judgement of the Supreme Court case here.
OULS News Editor