Despite a metaphorical sigh of relief within the care sector following the Court of Appeal judgement delivered in July 2018 that ruled only time spent awake and working by sleep-in staff counts as working time for National Minimum Wage, the uncertainty appears to continue.
Unison, the largest trade union in the UK whose members work in the public and private services sector, has recently lodged an application to appeal to the Supreme Court. If this appeal is permitted it is unlikely that a decision will be granted until late 2019 at the earliest. The care sector therefore remains in a state of limbo as to how to comply with the National Minimum Wage requirements regarding sleep-in staff.
The official guidance provided by the Department for Business, Energy & Industry (BEIS) within the booklet Calculating the minimum wage – National Minimum Wage and National Living Wage was updated in November 2018. Referring to the Mencap v Tomlinson-Blake and Shannon v Rampersad cases within this publication, BEIS states “If the Supreme Court considers the appeal being made, it might issue a judgment which changes the circumstances in which national minimum wage is due for sleep-in shifts. Any judgment is unlikely to be issued before 2019 and possibly not until 2020. Whilst any challenge in the Supreme Court is ongoing, employers must continue to comply with the law as it currently stands”.
This continued lack of clarity is not helped by HMRC’s apparent decision to continue to operate the Social Care Compliance Scheme (SCCS) with all the original process and timeframes remaining in place. It would have been hoped that HMRC might suspend the SCCS process, and any current compliance activity regarding sleep-in shifts, until such time that the outcome of the Unison appeal has been granted or at the very least until official guidance has been published. As it currently stands further clarification is urgently needed, and we can only hope that it arrives soon.
Should you require further advice please contact Michael Evans on Michael.Evans@albertgoodman.co.uk or call 01935 423667.