Calculating the national minimum wage – "sleep in shifts" government guidance updated

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Calculating the national minimum wage – "sleep in shifts" government guidance updated

Published 8 November 2018

Yesterday, 8 November, the Department for Business, Energy & Industrial Strategy (BEIS) issued an update to their guidance on Calculating the Minimum Wage in relation to sleep in shifts. We have been awaiting this update since July when the Court of Appeal gave its judgment in the joined cases of Mencap v Tomlinson–Blake and Shannon v Rampersad (click here for our previous alert on this case).

Unsurprisingly the guidance confirms that employers should comply with the law as it currently stands, following the Court of Appeal judgment in Mencap, even though the decision is now being challenged in the Supreme Court. The union Unison is challenging the court decision and has sought permission to appeal to the Supreme Court. This appeal is at a very early stage and if allowed to go ahead a judgment is unlikely to be issued before 2019 and possibly not until 2020.

The guidance sets out the following:

  • Where workers are required to stay at or near their workplace on the basis that they are expected to sleep for most or all of the period, but may be woken when required to undertake work:

    • If the employer provides suitable facilities for sleeping, the 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.

    • 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.

  • The guidance emphasises that each case may be different depending on all of its individual circumstances, including what the contract provides and what is happening in practice.

What does this mean for employers?

Although expected, this confirmation by BEIS will be welcomed by the care sector. That said we are unable to predict at this stage whether the Court of Appeal decision will be overturned in future by the Supreme Court and therefore employers should be conscious in their planning to factor in this possibility.

Employers will also be mindful of the Social Care Compliance Scheme (SCCS). HMRC continues to operate the SCCS but it has been amended to reflect the Mencap Court of Appeal judgment. The SCCS allowing participating employers to complete a self-review and make a declaration to HMRC. All original timeframes and requirements of the scheme remain in place, meaning affected employers as things stand at present must complete their self-review and submit their declarations to HMRC by no later than 12 months of their application to the SCCS or 31 December 2018, whichever is sooner. Employers now have the difficult decision to take as to whether, remain in the scheme and report taking into account the BEIS Guidance, leave the scheme, or enter a zero return. If you would like advice on this please contact us.

We will of course continue to monitor the Mencap case and SCCS and update you with any future developments.

To see the updated BEIS guidance please click here.

Authors

Deborah Hely

Deborah Hely

Manchester

+44 (0)161 934 3025

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