The use of large up-front fees and disproportionate deposits has already resulted in significant cost consequences for one care provider.
“HMRC enforce National Minimum Wage (NMW) legislation in line with the policy set out by the Department for Business, Energy and Industrial Strategy (BEIS) and do not have discretion to take action outside of the law. For all minimum wage investigations, HMRC officers must consider the facts available to them to allow them to draw a balanced conclusion. They must, though, require all employers to pay back any arrears that they find. The legislation on whether workers employed on a sleeping shift are working and entitled to National Minimum Wage has been tested at Tribunal, and BEIS guidance and HMRC operational practice follow that case law. The case law is very fact-specific and each case HMRC investigate is treated on its own merits and requires the facts to be established to ensure the circumstances of each worker are taken into account. If there is a statutory requirement for a worker to be present or they would face disciplinary action if they left the workplace, they would usually be entitled to NMW or NLW, including whilst sleeping, because they are working for the whole time they are on shift. Where an underpayment is identified, HMRC will issue a Notice of Underpayment specifying the arrears due for the full period the worker was underpaid, up to a maximum of six years. To help employers meet NMW legislation, BEIS have published guidance on how to calculate the minimum wage, which includes examples of when a worker is sleeping. You can find it here."
This approach in part reflects some of their published guidance. However, the emphasis on following case law gives a clearer indication of their approach to inspection than that contained within the published guidance. There are not many providers we know who can let sleep-in staff come and go as they please. We have a number of cases ongoing with HMRC where we have raised various questions and if we have any further news that may impact on your approach to payment of sleep-ins will provide a further update.
For further information
For a discussion on the impact on your approach to sleep-ins please contact Matthew Wort or Anna Dabek. You can also find out more about how we can help health and social care organisations on our website here.
The government announced on 16 May that it will provide a fund of £400m to cover the costs of removal and replacement of cladding to high rise residential blocks which have failed tests.
Whilst some people are under the impression that preparing a Lasting Power of Attorney (LPA) is simply a case of completing a form and ticking a few boxes, it is about far more than this.
A big fear for some people facing divorce and the inevitable carving up of the matrimonial assets. They seek assurances that such assets will be “ring-fenced” and retained for them.
Thinking about the legal status of being a cohabitant probably isn’t at the top of the ‘to do’ list.
When an individual is thinking about making a gift to another individual, consideration needs to be given to the Potentially Exempt Transfer (PET) trap.
We are now only a few weeks away from the biggest change to data protection laws in over 20 years. Are you compliant?
The tragedy, in this case, is that there were options readily available to the midwives that they could have used. This was not a case of having to go above and beyond.
Arising from the recent Family Division announcement, people who think they are legally divorced may in fact still be married.
The SCCS has issued providers in the scheme a series of updated and new documents in order to assist with their National Minimum Wage review.
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