The draft regulations making it mandatory for anyone entering a registered care home in England to have been double vaccinated unless they are clinically exempt were made on 22 July 2021.
The long and arduous legal process to determine what the National Minimum Wage (NMW) Regulations mean on the question of workers’ “sleep-in” pay is coming to an end; this Friday (19 March) at 9.45am the Supreme Court will deliver its final judgment.
Some Supreme Court decisions land quietly, this one will not. If it decides that workers are entitled to NMW for the duration of a “sleep-in”, the financial impact on the health and social care sector will be extensive. This is especially so given the severity of the last twelve months amid the coronavirus pandemic. Conversely, should the Supreme Court rule that the Court of Appeal ruling still stands and entitlement to NMW is only for hours worked, there is much to be done by the Government on the funding front in the sector to ensure uniformity and fairness.
Given our involvement with this case, we are holding a live webinar this Friday, 19 March, at 4pm; Matt Wort and Anna Dabek will be discussing the judgment, referencing the decision, and providing further guidance and comment in particular on what actions providers should be taking both internally and externally. For more details, please contact firstname.lastname@example.org.
In addition to this webinar, we will produce lengthier explanations and commentary on the decision next week, but, as we await the judgment on Friday, it is useful to briefly highlight the practical implications of the decision, whichever way it falls.
If the Supreme Court consider all hours of a sleep-in are working time for NMW purposes in all circumstances potential actions to consider include:
- Communicating the decision to your employees (if you have been updating them about the case as it has progressed through the courts) and indicating your plans moving forward;
- If you are not currently paying NMW for every hour of a sleep-in, changing your arrangements as soon as possible;
- For providers with Daily Average Agreements in place in respect of time spent asleep, taking legal advice as to how far the judgment will impact on those arrangements;
- It may be appropriate in some cases to convert sleep-in shifts to waking night shifts unless a distinction between the pay for a sleep-in and a waking night can be maintained;
- Contacting your commissioners requiring an increase in funding to cover any costs incurred arising from the judgment (referencing their obligations under the Care Act statutory guidance in respect of local authority commissioners);
- Identifying if there are particular contracts you will need to serve notice on if there is no change in approach from commissioners;
- Updating estimates of historic liabilities and liaising with your accountants in relation to the impact on the organisation and its future viability;
- For charities, considering whether a serious incident report is needed;
- Capturing all follow-up actions in a clear risk mitigation strategy; and
- For care sector umbrella bodies - concerted collective action to seek to ensure that wherever liability arises in respect of the delivery of a statutory service any provider who has followed Government guidance regarding sleep-in pay is fully funded. Including those in respect of any historic liabilities and the related administrative burden and action to ensure that all sleep-in related costs are covered moving forward.
If the Supreme Court consider only hours spent awake and working are working time for NMW purposes in all circumstances potential actions to consider include:
- Communicating the decision to your employees (if you have been updating them about the case as it has progressed through the courts) and indicating your plans moving forward.
- Assuming NMW is currently being paid for sleep-ins and this is being funded by commissioners, seeking assurance that funding will continue so that you do not have to change payment arrangements.
- Reviewing your sleep-ins to assess what payment arrangements you want to and are able to commit to going forward.
- For care sector umbrella bodies, concerted collective action to ensure a minimum rate for sleep-ins with appropriate funding to ensure its delivery.
- If you would like to watch the judgment as it is announced, please click here at 9.45am on Friday 19 March.
- Following the two-day hearing, earlier in February this year, Matt Wort wrote this ebriefing and his thoughts for the judgment.
- For further comments in the Guardian on this point see Matt’s article here.
For more information
For further information in relation to any of the above, please contact your relevant ACS contact or Matt Wort.
In the Transforming Public Procurement Green Paper, the Government signalled its desire to increase its control over procurements by all contracting authorities.
The monthly round-up from the Anthony Collins Solicitors charities team.
Legal updates as the UK enters into stage 4 of the roadmap and legal restrictions on face coverings and social distancing are lifted.
The first disability we are going to discuss is diabetes. We begin by discussing the different types of diabetes; their similarities and differences and how we live with the disability within our day.
Tim Coolican and Freya Cassia explore the legal and practical options available to providers if a disappointing result is received following an inspection.
Following the launch of the CQC’s new strategy for how it regulates health and social care, many providers will be keen to know more about how the changes might affect them in the future.
EPC’s are not required to be served with a Section 21 notice for assured shorthold tenancies if the tenancy predates October 2015.
A new era of paperless property deals is upon us following the Land Registry’s landmark decision in July 2020 to accept e-signed documents for registration.
To receive invitations to our events, as well as information and articles on legal issues and sector developments that are of interest to you, please sign up to Newsroom.