It was the right decision to not award backpay to overnight carers. The care sector is already at the brink of collapse

Widespread sector collapse was imminent if the ruling was not overturned, with bankruptcy of countless care firms and charities inevitable

The differentiation between actual work and a sleep-in shift spent asleep is essential to the care sector as we move forward – both in definition and in remuneration (Getty)

A dose of common sense was administered by the judges at the Court of Appeal yesterday. By ruling that the national minimum wage should only be paid to sleep-in care workers when they are awake and active, the care sector has been thrown a lifeline.

The impact of this decision should not be underestimated, as it provides short-term financial stability at a time when budgets are being constantly squeezed. Care providers and commissioners throughout the country took a collective breath, knowing that tomorrow’s care packages can be delivered – with the £400m sleep-in shift back pay rescinded, for the time being at least.

The case has received widespread media attention, and understandably unions have voiced their concerns on the judgement. However, to suggest that care providers, local government and the NHS don’t think much about care workers is simplistic at best, divisive at worst. Widespread sector collapse was imminent if the Mencap vs Tomlison-Blake ruling was not overturned, with bankruptcy of countless care firms and charities inevitable.

Rather than further disputes, such important news for a sector fraught with challenges should serve as a catalyst for progress. It is time for the industry to unite to resolve this issue. As highlighted by the #SolveSleepInsAlliance; none of us want the sector to fail, but the solution needs to work for all.

Firstly, the sound logic of yesterday’s judgment should be acknowledged. As Judge Underhill stated, it would not be a natural use of language to describe someone as “working” when they are expected to be asleep throughout all or most of the relevant period.

The correct interpretation of the law has been reinstated, as it was never the intention of parliament that all hours of a sleep-in at a service user’s house should be counted for National Minimum Wage (NMW) purposes. Only when a staff member is awake and carrying out actual time work should the NMW apply, as per the Low Pay Commission’s recommendations, with the nightly flat rate paying the worker for being “available” to work. Research suggests that 1 per cent of sleep-in shifts are spent working, so the expected scenario is that the worker is asleep for the entire sleep-in, almost every sleep-in.

Put simply, the differentiation between actual work and a sleep-in shift spent asleep is essential to the care sector as we move forward – both in definition and in remuneration.

This does not mean that the previous levels of flat pay are fair across care providers. I categorically think many are too low. Some sleep-ins had been paid at a flat rate as low as £25 per night, and whilst market forces had pushed most sleep-ins to between £35-£45, we need to safeguard against cash-strapped care commissioners from local authorities and the NHS reverting to minimal spend. Recruitment and retention continue to be long-term issues, and now more than ever we need to keep quality people in the sector, making clear how much workers are valued and making it attractive to those considering a move into care.

Therefore, I consider the introduction of a universally agreed and regulated minimum rate for sleep-ins to be vital. The Low Pay Commission should address the exact amount, but payment in the region of £40 to £50 to cover a nine-hour sleep-in seems a workable solution, provided commissioners fund it.

For this to be agreed and implemented, it would need significant work across the piece, including legislative, regulatory and financial support. Coordinated lobbying should take place, with clarity provided by legislation, ensuring commissioners cannot reduce amounts – with the required additional funding committed by central government and regulation carried out by HMRC.

Guidance on how workers are to be paid for sleep-ins must be updated, while safeguarding the future of the sector and the people it cares for. This issue should be put to bed – and the time is now.

Matthew Wort is partner at Anthony Collins Solicitors