Unison have lodged an application for permission to appeal to the Supreme Court in the Mencap case.

We expect that it will take at least 8 weeks for the Supreme Court to decide whether to grant permission to appeal. If permission is granted, the Supreme Court would then list the case for a hearing, which we would expect would be in the latter part of 2019. We will provide a further update on timings once further information is available. Our expectation is that the Supreme Court will give permission for the appeal to proceed to be considered at a hearing.

 The grounds for appeal highlight the significance of the issue for the sector and for workers. They are technical in nature but are broadly based on argument that:

  1. The previous approach to the law was correct. The exemption regarding sleeping should only apply if someone is not already working because of the nature of the restrictions on them.
  2. The Low Pay Commission recommendations have been misunderstood. It is alleged they recommended time spent available for work should be paid at NMW rates.
  3. The Court of Appeal contradicted themselves by saying that the sleep-in exception was intended to deal “comprehensively” with the position of sleep-in workers, and then accepting the conclusion in the Scottbridge case which the Court of Appeal felt turned on its particular facts.
  4. The Court of Appeal were wrong to conclude that Walton (the case which upheld the use of Daily Average Agreements in a live in care context) was authority for the proposition that a worker on call who is permitted to sleep is not working.
  5. The Court of Appeal shouldn’t have changed the Tribunal’s original decision on its facts unless they concluded the original decision was perverse. 

The Court of Appeal decision represents the current interpretation of the law, but this appeal means it cannot yet be taken to be the final position. Providers will be keeping a close eye on further developments to help decide future pay strategy for sleep-ins. We expect HMRC will be providing an update in respect of the SCCS scheme by 17 August and we will provide a further update once we have considered the HMRC update.

For more information

For further advice contact Matthew Wort or Anna Dabek or your usual contact in the Employment and Pensions Team.