Prior to the summer of 2016, we have been involved in a number of inspections where HMRC had concluded that it was only the time spent awake and working during a sleep-in shift that would count for National Minimum Wage (NMW) purposes. In two recent matters they have taken the view that every hour of the sleep-in counts where: (i) there was a requirement for the workers to be present during the night, and (ii) those workers were not allowed to leave the service during the hours they are required to sleep-in.

As a result, on 15 November 2016 we made a Freedom of Information Act request, asking various questions to understand more about HMRC’s change of approach and their current approach to alternative pay arrangements for sleep-ins, such as top-up payments and the use of daily average agreements. We will provide a further update once we have the outcome of our request.

Many providers have already been reviewing their strategy for NMW compliance in recent months, and these developments further highlight the need to review how you manage your risks relating to NMW compliance.

If you require advice in relation to national minimum wage compliance and the possible options for sleep-in arrangements, please contact Matthew Wort or Anna Dabek.