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Supreme Court decision in Royal Mencap Society v Tomlinson-Blake –what does it mean for UK personal injury practitioners?
- Jul 26, 2021
- Latest News
Personal Injury lawyers dealing with catastrophic or serious injury claims will have noted with interest the decision in Royal Mencap Society v Tomlinson-Blake [2021] UKSC 8. This decision of the Supreme Court was handed down on 19th March 2021 and considered whether care workers employed on sleepover shifts with injured or disabled people were entitled to the minimum wage.
Whilst originally an Employment Tribunal case, the decision has ramifications for seriously injured personal injury claimants who have been left with substantial care needs as a result of injuries arising out of an accident.
The issue of sleeping night care versus waking night care is a common area of dispute in catastrophic injury claims. Insurers can make very significant savings on annual costs if they can prove that a claimant requires a sleeping carer rather than a waking carer, since sleepover care is provided at a flat rate per shift, whereas waking carers must be paid the hourly minimum wage.
Sleepover carers are provided with a room to sleep in during their shift but must respond and provide support during the night if required, generally up to a maximum of three times per night. It was argued by Ms Tomlinson-Blake that she was engaged in time work and deserved national minimum wage for the whole of the shift as she had to remain on site, maintain an awareness, and could be called on to provide care at any time throughout the shift.
The court decided that care workers are only entitled to the national minimum wage for the hours they are awake and working and the time a worker is required to sleep on site or nearby doesn’t count towards minimum wage calculations. This is the final decision in the case and there is no further route of appeal for the claimant.
The Royal Mencap Society has welcomed the Supreme Court ruling. Had the decision gone the other way, care companies faced potentially devastating liabilities for back pay to their workers. Mencap did however recognise the disappointment that would be felt by hardworking care workers and called for the Government to reform legislation for sleep-in care which it calls “out of date and unfair”.
Meanwhile, in the world of personal injury law, no doubt insurers will breathe a sigh of relief and claimants who have settled claims on the basis of flat rates for night-time carers will sleep more easily. Where night time care is indicated in a catastrophic case, practitioners can expect the issue of sleeping versus waking night care to continue to be a hard fought battleground.