Providers will be hoping that the Government’s acceptance that previous guidance was misleading, as per the 26 July 2017 announcement, means that they will not need to repay alleged before February 2015.  Even payments for that period are, in our view, something that the Government should not require, given the approach to enforcement taken by HMRC until summer 2016 about sleep-ins. This is in addition to the obvious failure to properly consider why time spent asleep in a sleep-in is working time when time spent asleep in a live-in care setting isn’t. The circumstances of the “sleep” in both settings is not materially different.  With the Mencap case not being heard until March 2018, and the fact that the case won’t be considering an argument that a sleep-in is unmeasured work, we consider final certainty on this issue is still a long time away.

In the meantime, as the Government confirmed on 26 July 2017, it expects all employers to pay their workers as set out in the BEIS guidance ‘Calculating the National Minimum Wage’ and any employer underpaying their staff for “sleep-in”  shifts following that date will be liable to pay financial penalties. Providers need to be aware that where a care worker is doing time/salaried work, even when they are asleep and waiting to work, HMRC will take the view that they are  in fact likely to be working where:

  • there is a requirement for the workers to be present during the night, and
  • those workers are not allowed to leave the service during the hours they are required to sleep-in.

Our team of NMW experts that have experience of, and can assist with:

  • Helping you prepare for HMRC inspections and challenging HMRC’s approach (in particular regarding any historical back pay);
  • Reviewing your current arrangements;
  • Checking and drafting contracts of employment, daily average agreements and relevant policies and procedures;
  • Assisting with implementation of any proposed changes and drafting correspondence to staff and unions;
  • Dealing with any employee complaints including grievances and defending Employment Tribunal proceedings;
  • Negotiating fee increases and challenging Local Authority poor procurement practices.

Further information

For further information and assistance with any NMW issues or HMRC inspections, please contact Anna Dabek, Matthew Wort or your usual contact in our employment team.

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