The Employment Appeal Tribunal (Tribunal) judgement in Royal Mencap Society v Tomlinson-Blake, held that, in some cases, carers who are required to be present throughout the night will be entitled to the National Minimum Wage (NMW) whether awake or asleep. Following the judgement the House of Commons Library has published a briefing paper, National Minimum Wage - sleep in care. The briefing paper seeks to provide further guidance on whether employees who undertake sleep-in duties for healthcare providers are entitled the NMW for the time during which they are sleeping, as well as current enforcement policy on this issue.
The Mencap decision did not newly establish that carers undertaking sleep-in shifts could be entitled to the NMW, however previous Government guidance was potentially misleading on the issue. Social care providers have expressed concerns about their ability to meet the requirement to pay carers the NMW during sleep-in shifts.
Given the uncertainty the Social Care Compliance Scheme (SCCS) has been set up to give social care providers that have failed to pay NMW a year to self-identify what they owe to workers, with a further three months to pay the back pay to sleep-in staff. The compliance scheme is voluntary, those that choose to opt out of the SCCS will be subject to HMRC’s normal enforcement regime.
The decision in Mencap has been appealed as has a second contrasting case, Shannon v Rampersad which also refers to sleep-in work. Decisions are expected in the coming months.
The briefing paper goes someway to clarifying when the NMW should be paid to carers during sleep-in shifts and is a helpful summary of the Government's current position. However, the eagerly awaited Court of Appeal decision in Mencap could change the position. We will keep you updated on the decisions in due course.