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Mencap Wins Overnight Back Pay Appeal

July 13, 2018

Care workers who had to stay overnight as part of their job will not be entitled to back pay at the minimum wage after a Court of Appeal ruling.

The charity Mencap, who won the appeal, argued that a previous tribunal decision which compelled care providers to fund six years’ back pay for overnight carers was unaffordable.

And it said smaller employers could be forced out of business by the decision.

But a union said workers should be paid what they were legally entitled to.

Care workers who provide care for people with serious learning disabilities overnight used to be paid a flat fee of around £30, reflecting the fact that they might be sleeping during some of their shifts.

But after employment tribunal rulings, HM Revenue and Customs said they should be paid at least the minimum wage for every hour overnight, amounting to about £60.

Employers were told to fund £400 million of back pay but care providers, including Mencap, argued that this was unaffordable.

The Court of Appeal ruled today that care providers had no liability for back pay.

But the union Unison is considering an appeal to the Supreme Court.

Lord Justice Underhill, sitting with two other senior judges in the Court of Appeal, said: “For the reasons which I have given I believe that sleepers-in… are to be characterised for the purpose of the regulations as available for work… rather than actually working… and so fall within the terms of the sleep-in exception.

“The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.”

However, most employers have now started paying the minimum wage to care workers who sleep overnight while working.

2 Comments leave one →
  1. July 26, 2018 11:12 am

    1. Mencap did not and never have had a backpay liability of £400m, as you suggest. This is a figure allegedly from an industry survey of 2016 conducted by Cordis Bright. This report has never been made public and repeated requests to industry bodies to do so have been declined or ignored. Mencap’s alleged liabilities run to around £18m but this is also very suspect. #payupmencap
    2. In the latest #solvesleepin industry survey submitted to the Court of Appeal, the employers admit 39% do not pay the NMW to their employees and around 20% of those surveyed do not intend to.

  2. July 27, 2018 12:13 am

    Cool website abstrakt 😀

    I had a look through Mencaps “Benefits for people with a learning disability” section of it’s website –

    I couldn’t find one single mention of Fraud, Misconduct in Public Office, Hate Crime, Vulnerable Adult Abuse, Torture, Murder or The Police…

    So I had a look at their accounts –

    year ending
    31 Mar 2017 –
    Page 79 –
    Cabinet Office – £50,000
    Dept of Health – £39,000 (2016)
    NHS Commissioning Board – £48,000 (2016)

    Page 78 –
    Middlesbrough Council – £17,000 (2016)
    BBC Children in Need – £15,000 – £15,000 (2016)
    BBC Children in Need Play our way – £35,000 – £34,000 (2016)

    (fyi – BBC employs Torturing, Murdering, Fraudsters ATOS and CAPITA)

    Checkout –

    The Bribery Act 2010 –

    and –

    Misconduct in Public Office –

    (Meaning of Public Function) Human Rights Act 1998 –

    Serious Crime Act 2007 – Part 2 – Encouraging or Assisting Crime –

    Serious Crime Act 2007 –
    45 Offence of participating in activities of organised crime group –

    Accessories and Abettors Act 1861 –

    Criminal Attempts Act 1981 –

    ABH/GBH –

    Homicide: Murder and Manslaughter –

    Criminal Justice Act 1988 – Torture

    Perverting The Course of Justice –

    UN Convention on the Rights of Persons with Disabilities – Articles

    UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

    The ‘Celebrities’ you show supporting Mencap are *all* current or ex ATOS/CAPITA/BBC employees –

    “Game of Thrones Actor: Kit Harington”
    Gunpowder is a British historical period drama television mini-series produced by Kudos and Kit Harington’s Thriker Films for BBC One.

    “Doctor Who’s Jodie Whittaker”

    “BBC Presenter Jo Whiley”

    “Gavin & Stacey Actor Mathew Horne”

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