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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:
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.
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