Sleep-ins, the National Minimum Wage & the social care sector

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In May I wrote about an important decision of the EAT concerning working time, sleep-ins and the minimum wage. The decision could have profound implications for anyone employing staff to provide a 24 hour service and especially for social care providers. Please click here to read my previous piece.

Employers are grappling with the financial consequences at the same time as HMRC is investigating social care providers for underpayment of sleep-ins.  The government says the stability of the social care sector is a key priority and it recently announced a couple of exceptional measures aimed at helping employers in the sector:

  • it waives the financial penalty which would otherwise be imposed on an employer found to be in breach of the minimum wage regulations by underpaying staff for sleep-ins. The waiver applies to underpayments for shifts worked before 26 July 2017. Note that the relief is from the penalty not the arrears themselves and underpayments for shifts after 26 July will attract the usual penalty of 200% of the arrears.
  • HMRC are temporarily suspending enforcement action in respect of underpaid sleep-ins in the social care sector until 2 October 2017 while the government engages in discussions with representatives of the sector.

This is a welcome respite for employers in the sector even if it’s only a short breathing space. In the meantime cases involving the minimum wage are always likely to turn on their particular facts so there’s no substitute for the tailored guidance which my colleagues and I can provide.