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Application lodged to appeal £400m sleep-in shifts liability ruling

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Trade union Unison has applied to appeal a ruling in relation to £400m backdated costs for social care staff for sleep-in shifts.

LGC reported last month how the charity Mencap, supported by Care England, challenged a tribunal ruling in 2015 which left providers with a collective liability for national living wage pay backdated over six years.

The challengers argued under the current national minimum wage rules those doing sleep-in shifts should not be considered as working whilst asleep. They also warned the care market could be pushed to the brink of collapse if it was made to stump up the costs.

The Court of Appeal overturned the original tribunal ruling.

At the time Unison general secretary Dave Prentis called the judgment “a mistake”. Unison has argued that most care workers on sleep-in shifts are not sleeping as they are often carrying out other duties.

Unison has now applied to appeal last month’s ruling. LGC understands it could take at least a month, possibly two, for the courts to decide if there is a case to be heard.

The union’s head of legal services Adam Creme said: “There will be a period of time when the Supreme Court considers the applicatio, but it is reasonable to expect the court will agree to hear an appeal.

“Assuming this is agreed, Unison will be taking the appeal forward and fighting for our members.

“We believe the Court of Appeal got this decision completely wrong and will do everything we can to reverse it.”

Matthew Wort, partner at Anthony Collins Solicitors which represented Care England in the case, said: “The Unison appeal to the Supreme Court was to be expected given the importance of the issue to their members – and I would anticipate the Supreme Court granting permission to proceed to a hearing.

“Care providers throughout the UK will now face further uncertainty at a time when consistency and continuity of the law is greatly needed. We hope commissioners of sleep-in care will maintain payments to providers which enable them to continue their current pay practice for sleep-ins, pending further news from the Supreme Court.

“It is likely that HMRC will provide an update on the Social Care Compliance Scheme to providers in the scheme by the 17 August. We expect HMRC will want to wait until the Supreme Court have decided whether to grant leave to appeal before deciding their next steps.”

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