The Court of Appeal ruled last month that social care providers would not have to issue backdated pay to staff, but an appeal could be heard
A union has launched a legal challenge against a ruling that reprieved social care providers from having to backpay staff for sleepovers.
Unison has lodged an appeal with the Supreme Court after a hearing last month ruled that social care providers in the UK would not be liable to pay around £400 million which had been deemed to be owed to staff.
A tribunal last year, ruling against the mental health charity Mencap, concluded support workers who do sleepover shifts should be paid the hourly minimum wage for the periods they are asleep.
It ordered the charity to pay their carers six years of back pay. Mencap estimated that this would mean it owes £20 million to staff, and social care providers would owe around £400 million.
However the Court of Appeal overturned the decision that backpay would be issued to workers last month. Social care providers were then contacted by HMRC who informed that employers were no longer required to calculate the amount they owed to workers, which had been due to be paid in February of next year.
This week Unison confirmed that it has applied for leave for an appeal to be heard, with a decision on whether or not the appeal will be allowed to proceed due within the next few months.
Following last month’s ruling, Unison general secretary Dave Prentis said the courts had made a mistake.
He said: “Sleep-in shifts involve significant caring responsibilities, often for very vulnerable people.
“With too few staff on at night, most care workers are often on their feet all shift, only grabbing a few minutes sleep if they can.
“That’s why it’s such a disgrace that workers have been paid a pittance for sleep-ins – with some getting just £30 for a ten-hour shift.”
Matthew Wort, partner at law form Anthony Collins Solicitors, said the likely appeal would cause more uncertainty for social care providers.
He said: “The Unison appeal to the Supreme Court was to be expected given the importance of the issue to their members – and I would anticipate the Supreme Court granting permission to proceed to a hearing.
“Care providers throughout the UK will now face further uncertainty at a time when consistency and continuity of the law is greatly needed. We hope commissioners of sleep-in care will maintain payments to providers which enable them to continue their current pay practice for sleep-ins, pending further news from the Supreme Court.”
Wort added that he expected HMRC to provide an update to groups affected by the case later this month.
In 2017, HMRC set up the Social Care Compliance Scheme which gave care providers one year to self-assess their liability and a further three months to pay back workers.
The scheme offered no assistance to providers in assessing their liability, locating their past staff of up to six years ago nor any information on how past and current employees would be paid.
The Coalition of Care and Support Providers in Scotland (CCPS), which represents third sector care providers, has previously said its members have been complying with the ruling to pay staff the minimum wage for all sleepover hours worked since 2015.
