Sleep-in–shifts and the minimum wage
07 August 2018
Further to the decision last month made by the Court of Appeal to not count sleep-in shifts as working time, HMRC is presently considering the implications of the appeal.
On Friday 13 July 2018 the Court of Appeal heard two cases (Mencap v Tomlinson-Blake and Shannon v Rampersad) - the appeal in Mencap, together with Shannon v Rampersad, which is an appeal against a decision made in 2015 in another sleep-in case.
The broad issue in both these appeals is whether the entirety of the period spent on the premises under such arrangements must be taken into account in calculating an employer’s obligations under the National Minimum Wage Regulations or only such time as is spent actually performing some specific activity.
The decision made by the Court of Appeal is not to count sleep-in shifts as working time; the only time that counts for national minimum wage purposes is a time when the worker is required to be awake for the purposes of working.
At the time of the judgement, we highlighted that the government had introduced a social care compliance scheme (SCCS) for providers last autumn that may have incorrectly paid workers below legal minimum wage hourly rates for sleep-in shifts.
We questioned HMRC as to what the Court of Appeal’s ruling means for those workers who are still owed money. We asked in light of the fact that GOV.UK guidance was quickly amended to remove the ‘Decide if sleep-in shifts are counted as work’ section, and also that UNISON is considering an appeal to the Supreme Court.
HMRC responded saying that they are presently considering the implications of the Mencap Court of Appeal judgment and that further information will be provided to Social Care employers who entered the SCCS in due course.
Although this isn’t telling us any kind of decision, it is at least confirmation that the impact of the ruling is being discussed. We will monitor UNISON’s activity and any updates to the SCCS and keep you informed.