Following the decision in the Court of Appeal last summer, (see our ebriefing) the Supreme Court has announced today, that Mencap’s leave to appeal this has been granted.  Their Lordships will now deliberate on whether all time spent during sleep-ins count towards working time for the purposes of National Minimum Wage or, as the Court of Appeal decided, just time spent awake and working. 

For those of us involved, be it in an advisory or operational capacity, this announcement, whilst prolonging the absence of a final answer is by no means unexpected (see our ebriefing).    It was always unlikely that a matter with such huge cost implications for the care sector and significant impact for individual employees would be resolved without the Supreme Court getting to decide. 

We have been informed by the Supreme Court that the hearing will not take place before October 2019, but the actual timetable is yet to be confirmed.  With that in mind, we would advise care providers to take the following steps;

  • Use the ongoing uncertainty caused by this in discussions with commissioners to seek to ensure that sufficient funding is provided to pay NMW for each hour of a sleep-in pending the Supreme Court’s decision;
  • For those considering removing Top Ups consider whether any change should be delayed pending the decision of the Supreme Court.  We recognise that commissioners funding decisions may drive decisions on Top Ups; and
  • For those who have already removed Top Ups consider your risk management strategy in light of the potential for the Supreme Court to decide that every hour of a sleep-in counts.

For a case where so many people have a different view, it is difficult to second guess the results of the Supreme Court’s deliberations and predict an outcome.  Our view is that the Court of Appeal rightly interpreted the wording of the NMW regulations in accordance with Parliament’s intentions when the Regulations were introduced.  We would hope the Supreme Court will follow suit and leave it to parliament to consider whether the current National Minimum Wage Regulations give sufficient protection to workers carrying out sleep-ins. 

Further information

We will, of course, provide any updates about the timetable for the case, but in the meantime, please do not hesitate to contact Matt Wort or another member of the employment team.

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