“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.

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