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In April 2017 the Employment Appeal Tribunal handed down judgment in Royal Mencap Society v Tomlinson-Blake, deciding that, in some cases, carers who are required to be present throughout the night will be entitled to the National Minimum Wage (NMW) whether awake or asleep. While this had been established by earlier case law, government guidance had been potentially misleading on the issue. Social care providers reacted to the judgment with concern about their ability to pay carers the NMW during sleep-in shifts and their exposure to claims for backdated pay.

Mencap appealed the decision. The Court of Appeal heard the case in March 2018 and handed down judgment on 13 July 2018, reversing the decision of the Employment Appeal Tribunal. The Court held that “the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working”.

Following the Employment Appeal Tribunal decision, the Government had set up the Social Care Compliance Scheme, to help social care providers comply with their backpay liabilities. In light of the Court of Appeal’s judgment, it appears likely the Scheme will be suspended and possibly discontinued, pending the outcome of Unison’s appeal to the Supreme Court. However recent reports suggest the Scheme is still operating.

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