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The Department for Business, Energy & Industrial Strategy (BEIS) has updated its guidance to Calculating the Minimum Wage in relation to sleep-ins.
The update can be found here.
The updated section of the BEIS Guidance now states:
In some sectors – including, but not only, the care sector – workers are required to stay at or near their workplace on the basis that they are expected to sleep for all or most of the period but may be woken when required to undertake work. Such shifts normally occur at night but could occur during the day. If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep. However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift.
The position is different where workers are working and not expected to sleep for all or most of a shift, even if there are occasions when they are permitted to sleep (such as when not busy). In this case it is likely minimum wage must be paid for the whole of the shift on the basis that the worker is in effect working all of that time, including for the time spent asleep.
Each case may be different depending on all of its individual circumstances, including what the contract provides and what is happening in practice. If you are unsure about the arrangements you have in relation to the National Minimum Wage, you can contact the Acas Helpline on 0300 123 1100.
The Supreme Court
This guidance reflects the law as it currently stands, in particular as determined by the Court of Appeal’s judgment in the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad ( EWCA Civ 1641). If the Supreme Court considers the appeal being made, it might issue a judgment which changes the circumstances in which national minimum wage is due for sleep-in shifts. Any judgment is unlikely to be issued before 2019 and possibly not until 2020.
Whilst any challenge in the Supreme Court is ongoing, employers must continue to comply with the law as it currently stands.”
The updated guidance appears consistent with the Court of Appeal decision in Mencap where it was found that generally, it is only time spent awake and working during a sleep-in that counts as working time for National Minimum Wage purposes.
In essence, where a care worker is undertaking a night shift and:
- the essence of the arrangement is that the worker is expected to sleep and is provided with suitable sleeping facilities, only the time awake counts as working time;
- the worker is permitted to sleep, but only intermittently when there is no work to be carried out, the worker is likely to be considered as working for the duration of their shift.
The headline consequences of the updated BEIS Guidance are:
- This guidance reflects the law as it currently stands and confirms that compliance with NMW is to be assessed in accordance with the Mencap judgment;
- Providers in the Social Care Compliance Scheme are able to self-review in line with the Mencap judgment – for most this means submitting nil declarations in respect of sleep-ins;
- We expect that Commissioners will look to reduce the amount they are paying providers for sleep-ins on the basis that only time awake counts;
- Providers may need to reconsider the approach they are going to take when determining future pay strategy for sleep-ins if commissioners do in fact reduce the amount they are paying;
- Providers need to bear in mind the fact that the law could change again, if any challenge in the Supreme Court is successful (but while we consider Unison may obtain leave to appeal their appeal is ultimately unlikely to succeed).
If you would like to discuss this in more detail, please get in touch with your usual contact in our Employment Team or email Regena Hodgson to set up a meeting/call with one of our team to discuss your approach.
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