The Court of Appeal has found (13 July 2018) that it is only time spent awake and working during a sleep-in that counts as working time for National Minimum Wage purposes. https://www.anthonycollins.com/…/court-of-appeal-judgment-…/
STOP-PRESS Unison’s appeal with the Supreme Court has been allowed and it is expected that the argument over pay for sleep-in shifts will finally be settled in its appeal hearing scheduled for 12 and 13 February 2020.
It will now be legal for support staff to be paid a flat rate for sleep-ing away from home and the national minimum wage for any time if up in the night working.
People were not generally asking to be paid the hourly rate to sleep prior to this original judgement & it has had the effect of skewing pay and its holiday entitlements etc. Prior to austerity freezes by the Local Authorities, learning disability services generally recognised the complexity & responsibilities of working alone often in small community services with rates above the national minimum. However rates have been pushed down to the lowest minimal wage rate in too many agencies both by the austerity freeze and the vastly increased cost of sleep-ins (not paid fully by many if not most LAs)
Other consequences have been the undermining of more individualised housing dispersed in local communities which do lead to people becoming part of their local communities, using local shops and facilities. We have seen in the last few years therefore the burgeoning of block congregate housing so the costs can be shared. The problem is that this inevitably will separate people in these larger numbers from their communities and risk tomorrow’s institutions as it tempts commissioners and some providers into a collusive relationship of over-shared support. Risks will be people trapped in their flat/communal facilities or perhaps we’ll see mini-buses taking people out en masse? Worse will be the risks of too much hidden care and more scandals behind closed doors. We could hope that the sensible sleep-over judgement might help people to a real community presence and inclusion.
However, support staff will risk losses of income without some appropriate pay enhancement. In the light of the recruitment crisis despite the better sleep-in rate, can we hope that agencies will now negotiate a better hourly rate so they can pay staff a better rate again and maybe some reversion to community services IN the community not set apart?
Worst would find support staff losing the sleep-over enhancement with no enhancement of their day rates. There’s talk of #Unison appealing to the Supreme Court but better would be them negotiating better pay rates for people for the work they do do… The flat rate should be a reasonable rate and if people are regularly disturbed every night then this surely should be a waking watch not sleep-in?
What MUST happen is a revision of the rates of pay to encourage people both to stay and to come into the sector…. so it is incumbent on providers and unions not to proceed without sorting out the pay issues first and ensuring that the funding is not drawn back but agreed to be put into pay rates.
The judgement was on the cases of Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad (t/a Clifton House residential Home). (https://www.anthonycollins.com/media/2828/mencap-v-tomlinson-blake.pdf)
