Recently, in the case of MenCap v Tomlinson-Blake the Court of Appeal held that carers who sleep at a client’s home, to attend to any needs the client has throughout the night, aren’t entitled to minimum wage whilst asleep.
Before the decision made in the Court of Appeal, whether or not carers were entitled to minimum wage whilst sleeping was decided using a multifactorial approach, many different factors were taken into account before making a decision. But, due to the judge’s view on a particular previous authority, this approach is now considered wrong and is no longer likely to be used. With regards to the matter of whether or not ‘sleeping in’ carers are entitled to minimum wage, the judge decided that they weren’t. This is a decision welcomed by the NHS and the government as, had the decision gone the other way, carers could be entitled to a total of £400 million. So, whilst not everyone may agree with the decision, we may be better off for it.
However, the chance of an appeal to the Supreme Court is still on the cards and perhaps rightly so. It can be easily argued that carers are working whilst they’re sleeping at the home of a client, who has needs that may need to be attended to at any point of the night. As a result of this responsibility, carers may struggle to sleep as they need to ensure they’re prepared for anything throughout the night. In addition, they’re potentially spending time away from their family and from the comfort of their own home, which many would consider work. Ultimately the NHS will initially be thankful that the decision has gone their way due to the extortionate amount of money they would have otherwise owed, though they need to be careful that potential carers aren’t deterred from working for the NHS as a result of this decision.