The implications of the Mencap win in the NMW appeal – not as straightforward as one might think!

CASCAIDr’s analysis on the successful Mencap appeal will be out ASAP on Community Care’s site, but for now, this post just covers the highlights.

Mencap has won, and sleep in staff do not automatically get paid the NMW for every hour worked on a night shift.

Merely being required to be present somewhere does not make one automatically required to be somewhere for the purposes of working. It can do, but it doesn’t HAVE to.

Mencap argued that employees ‘sleeping in’ are only entitled to be paid when they are awake for the purposes of working and that was the true intention underlying the legislation implementing the National Minimum Wage giving effect to the recommendations of the Low Pay Commission – the idea being to give low paid workers some protection via a NMW but not to pay for being asleep.

The claimant in this case was required to carry out a sleep-in shift between 10pm and 7am but there were no specific tasks allocated to the Claimant during a sleep-in. She was allowed to sleep and further there was an expectation that she would have had a sufficiently good night’s sleep to enable her to perform her duties satisfactorily the following day. However, she was obliged to remain at the premises in question throughout the sleep-in.

The Tribunal found that the only task that she was required to do during sleep-ins was to be there and to deal with tasks that required her intervention, as and when, although it then went on to find that she was there for the purposes of working and on time based work under regulation 30.

The Court of Appeal has decided that one only gets NMW on a timed work footing, if one is required to be there for the doing of some specific task, not just being there ‘just in case’.

It will still – potentially – be a question of fact in a given case as to which side of the line it falls, if the employment contract allows for lack of clarity about the nature of the obligation at night, but the sector should be able to take care to avoid finding itself embroiled in this debate, by sensible drafting.

Likely consequences of the decision in the care sector

People who sleep in with permission, on a shift, without living in on the premises, were once and will now lawfully be allowed to be paid an allowance for night time work, plus NMW for any hours that they are awake, in light of this judgment.

Why this is not necessarily bad for low paid workers

CASCAIDr’s view is that this judgment will not actually affect the current practice of paying NMW for all night shift work, necessitated by the fact that the NMW has HAD to be paid since Mencap first lost its case, because of the state of the market in adult social care more generally.

For workers who have been paid the NMW for every hour, since the judgment in 2016, CASCAIDr thinks it is extremely unlikely that they will be expected to take a cut in salary now, just because one could contend that they don’t have to be paid NMW at night.

The state of the market probably means that workers will go to any provider who will pay them NMW for every hour. Agency are already struggling to recruit in order to discharge contractual obligations to councils.

Since no council wants to go back to having to provide care through directly employing its own homecare staff, now – and remembering that the duty is to provide, in order to meet need, if it is not in fact POSSIBLE to purchase from providers, we don’t think that commissioners will be mad enough to try to enforce a return to the old ways.

Providers MAY come under pressure from the most macho parts of commissioning to take cuts to the fees for the future, and must absolutely resist, if they are going to continue to pay the NMW to keep the staff turning up for work in the real world. They cannot decide to do this as a cartel as that would be criminal. But they can do it individually if they have any business sense and grasp of law, and just say No.

LAs will have budgeted for it, after all. Their remedy for their own funding difficulties lies with putting up a stronger front and speaking truth to power (the Treasury and the Ministry of Housing Communities and Local Government) and the new Secretary of State in the Department of Health – whilst he is hopefully still open to learning about the enormity of the problem facing social care.

Direct payment clients and the ambiguities in their budgets

Community care clients on direct payments are in an interesting position. They are unlikely to have had their budgets increased over the last two years, unless they were knowledgeable and assertive and well supported by advocates.

They don’t need an increase now, in legal terms, but in market terms, in order to be able to keep decent staff, they may well do…

CASCAIDr’s message is that it is not open to councils to pay less than the MARKET rate for the right level of PA, and therefore it may be necessary for direct payment holders to check out what the effect of this case really is in their own local market, and seek a review under s27 of the Act based on a change of circumstances.

Now Mencap has won, it is unlikely now that employed PAs will be going to a Tribunal for back pay, so most direct payment holders can sleep easier in their beds. But if cuts are imposed on the next review, they need to be alive to the point that it is the MARKET rate that has to be paid, not the NMW. In many places the market rate will be higher than the NMW or NLW.

The Oxfordshire case is not authority for the proposition that paying the NMW is easily defensible, and nobody, in CASCAIDr’s view, can be MADE to be an employer as the price of being granted a direct payment. There is no DUTY on a direct payment client to make it cheaper for the council to turn them into commissioners, in order to deserve a direct payment.

We do not think that there will be an appeal, in the current climate. If Unison were to ballot its members, working in care, it is thought that more of them would prefer to preserve their jobs, than threaten the market with total collapse, and would not want to sue their employers for back pay.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “

The implications of the Mencap win in the NMW appeal – not as straightforward as one might think!

  1. Chris Bancroft

    Thanks for your thoughtful piece Belinda. I wouldn’t be so sure that this is over just yet though, as key parts of the judgement do not accurately reflect the nature of the modern sleep-in.

    When the NMW regulations were drafted, the sleep-in shift was generally a back-up for waking night staff. When you are able to sleep unless a colleague wakes you for an emergency the flat rate made sense. However we are now the ‘lone nightwatchman’, lone working and using our trained listening ear for subtle and individual signs of need. If clear, reliable communications could be used then chances are we’d be replaced by assistive technology and the like.

    It has been mutually understood, if not contractually spelled out, that we do not claim for non-emergency actions. Given the higher thresholds required for even a sleep-in worker to be provided, broken nights become the norm not the exception in services where physical presence of trained workers are the only safe solution for independent living.

    The other flaw I will point out is the ‘permission’ of us to sleep in, classed as ‘by arrangement’ in the judgement. We can only stay over if a double contractual lock is in place: the purchaser contracts the provider and the provider contracts the employee. The relationship will be different for directly employed PAs. As leaving the premises will end our career through disciplinary action and DBS consequences, the obligation can be argued to constitute work in itself.

    It’s taken the Court of Appeal defeat for isolated social care workers to find each other and to start talking about what we really do, now without the protection of the minimum wage. This case still has a way to run.

    1. Belinda SchwehrBelinda Schwehr Post Author

      thanks for this too, although I have to say that I come at this from the rights of the service user, not as an employment lawyer or flag waver for the workforce.

      I absolutely agree that the practice in the sector did not accord with the modern shape and flavour of a sleep in sort of a care package, and I for one, would be glad to be right if it turns out that people don’t go back to ‘allowances’ even though they could. In the old days people WALKED into residential care homes instead of being stretchered in, and now people have hospital at home types of AT home or in a nursing home.

      I agree that whilst the Court could have read into the concept of being required to be somewhere, AS work, the slightly different notion of being required to be there to be AVAILABLE for work, if work arises, on pain of discipline for leaving, I don’t think that factors external to the employer/employee contract were ever supposed to be relevant in working out the answer whether one amounts to the other, in any given case.

      If the employee in Walton could be on unmeasured time, whilst being expected to be there several nights of the week, then that model for directly PAs continues to work for now – albeit with commission on top. I would say that we NEED it to work, lest everyone who is single, but who needs more than 4/5 hours a day of care is told that it’s inevitably a care home for them, now, because social care funding for any other model for meeting night time needs has been determinedly withheld from councils.

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