In July 2017, following the high-profile Employment Appeal Tribunal decision in the Mencap, Focus Care and Partington cases, and Mencap's statement that it expected to become insolvent if it had to pay its workers the minimum wage for the time they spend on sleep-in shifts, HMRC announced that it would not levy fines against employers for any underpayments of the minimum wage that pre-dated 27 July 2017. HMRC also announced that it was suspending enforcement action against healthcare providers until 2 October 2017. This announcement reflected government acknowledgment of concerns raised over the difficulties which the sector faced as a result of the simultaneous financial liability for penalties, as well as arrears of wages.
In its latest announcement the government has confirmed that the suspension will continue for 'up to a month' longer and a 'new enforcement scheme' will be published next month, although the exact date for this was not confirmed.
The details of the new enforcement scheme in relation to the underpayment of the national minimum wage remain to be seen. It the meantime, however, the government has confirmed that the exceptional measures which were laid down in July will remain in place for the time being.
Crucially the government also re-confirmed their expectation that all employers pay their workers in accordance with the relevant legislation, including for sleep-in shifts, as set out in previous guidance. Employers in the healthcare sector have been given a little bit of extra breathing space by this announcement. However, this only relates to HMRC enforcement action. There is no equivalent moratorium affecting an individual employee's right to pursue claims for unlawful deductions from their wages based on the National Minimum Wage. Employers should ensure that they are up to date with this guidance, particularly in respect of sleep-in shifts.