House of Commons Library, March 2018
In April 2017 the Employment Appeal Tribunal handed down judgment in Royal Mencap Society v Tomlinson-Blake, providing further guidance on whether employees who undertake sleep-in duties are entitled the National Minimum Wage (NMW) for the time during which they are sleeping. The Tribunal held that, in some cases, carers who are required to be present throughout the night will be entitled to the NMW whether awake or asleep. While this proposition had been established by case law prior to the Mencap case, government guidance had not explained this clearly.
Social care providers have expressed concerns about their ability to meet the requirement to pay carers the NMW during sleep-in shifts. Moreover, many such providers may be exposed to claims for backdated pay. To obtain backdated wages if underpaid, an employee could take a claim to the employment tribunal or the country court. In addition, the State enforces the NMW. If an employer has breached NMW law, HMRC may take enforcement action.
Following the Mencap decision and the realisation that government guidance had been “potentially misleading”, the Government has set up the Social Care Compliance Scheme and temporarily modified its policy on enforcing the NMW in the social care sector.
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