Legal update – Free advice for social workers


The Aberdeen Law Project (ALP), led by students, is to offer free legal advice to social workers who have been taken to tribunal and whose fitness to practice is under scrutiny. This is an initiative with the Scottish Social Services Council aimed at increasing access to justice. The aim is to be able to assist SSSC registered workers.


This case dealt with payment for sleepovers and whether or not a flat rate paid was sufficient on the basis that the employee was expected to sleep and was being paid simply for being present.  The employee contended she was entitled to the hourly national minimum wage for the duration of the sleep-in shift.  The Court of Appeal, overturning previous decisions of the Employment Tribunal and the Employment Appeal Tribunal, decided that sleep-in carers should be classified as available for work rather than actively working when they were asleep.  As the minimum wage was only payable for time when the employee was required to be awake for the purposes of working under Regulation 32 of the National Minimum Wage Regulations 2015, Ms Tomlinson-Blake was not entitled to be paid national minimum wage for the entire shift but only for any periods when she was awake and called upon to work. The Unison legal team who represent Ms Tomlinson-Blake have now been granted leave to appeal to the Supreme Court and we will keep Members updated once this case is heard by the Supreme Court. This case may ultimately have an impact on what employers require to pay to comply with National Minimum Wage Regulations and also the HMRC Social Care Compliance Scheme which closed on 31 December 2018.