LEARNING disability charity Mencap’s appeal against a ruling that sleep-in carers are entitled to the minimum wage for the whole of their shifts began at the Court of Appeal today.

Claire Tomlinson-Blake, a care support worker for adults with autism, was paid £29.05 for a nine-hour sleep-in shift — a flat rate of £22.35 plus one hour’s pay, £6.70.

Last April, the employment appeal tribunal (EAT) upheld an earlier ruling that her entire shift constituted time work “irrespective of whether she is sleeping or not” as she used her “listening ear” and her experience to know when she was needed.

Mencap has claimed that the decision leaves the care sector facing a £400 million back-pay bill and leaves care providers and recipients at risk of bankruptcy.

It has previously given the example of a disabled man, named only as Lloyd, who faces a possible £45,000 bill.

Care England, which is supporting Mencap’s appeal, said the decision could cost the sector an additional £200m a year from 2020 if the court upholds the EAT ruling.

Following last year’s ruling, the government waived any fines for not paying the minimum wage and suspended Revenue & Customs (HMRC) enforcement of back pay until October.

Then, in November, the government said employers had until March 2019 to repay arrears and created the Social Care Compliance Scheme (SCCS) which gave them a year to work out their own liabilities.

Providers opting for the voluntary SCCS will be anonymous and not penalised for underpayment, while those who do not sign up will be subject to a full HMRC investigation.

At the time, union Unison said “the voluntary nature of this scheme means unscrupulous employers will now be able to slip through the net.”

David Reade QC, for Mencap, said there was “little expectation” that Ms Tomlinson-Blake had to work on sleep-in shifts, adding: “The reality was that there were no duties required or tasks to be performed overnight.”

He pointed out that “she only was required to deal with six incidents of work in a 16-month period.”

Ms Tomlinson-Blake’s case is being heard alongside that of a care-home worker who lost at the EAT after claiming he should have been paid the minimum wage for shifts when he was on call.

The hearing continues.