A group of Anthony Collins Solicitors (ACS) experts from across our various client sectors have gazed into their crystal ball and given us a view on how 2021 is looking.
“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.
Luton Borough Council was prosecuted by the HSE late last year following an incident at a high school in which an assistant headteacher was attacked by a pupil and left with life-changing injuries.
This ebriefing looks at the proposal to set out 'public procurement principles' in the proposed procurement legislation.
Happy New Year - our first newsletter of 2021! Throughout this year we will continue to bring you news and developments relating to the charities sector.
Local authorities should be wary of reserving contracts for local suppliers, as recommended by Procurement Policy Note (PPN) 11/20. Other contracting authorities may want to maximise their use of this
Most housing practitioners have perhaps been waiting for this news since the latest lockdown was announced by the Prime Minister on 4 January 2021.
Climate change and biodiversity is an area where significantly faster changes are needed on a global and local basis.
Chris Lloyd Smith, Adrian Leonard and Lisa Whitehouse discuss the planning opportunities available to owners of businesses and how to prepare for unforeseen events.
In their 3rd podcast of the series, Chris Lloyd-Smith and Maria Ramon discuss a number of problems with and difficulties that can arise in mediation and the mechanisms they use to overcome them.
Our previous round-up began by sharing the news that two vaccines had shown very promising test results. Here we are, not even a month later, and the first vaccines have already been administered!
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