Sleep-in Shifts and the National Minimum Wage

Care providers should review their rules regarding sleep-in shifts and National Minimum Wage regulations.

Recent case law has highlighted failures by several employers to fail to meet the National Minimum Wage (or National Living Wage for over-25s) for employees engaged in sleep-in shifts. The Employment Appears Tribunal arrived at four relevant factors for employers to consider and DLP offers four steps employers can take to avoid running afoul of wage regulations.

The Employment Appeal Tribunal noted the following four factors as relevant to determining NMW (NLW) requirements.

1. The particular purpose for which a worker is engaged.
   • Is the employee required by statute or regulation to be present and on-site?
2. Whether the employee is required to remain on premises.
   • Can the employee leave the premises for lunch breaks or other purposes?
3. The employee’s responsibilities.
   • Does the employee respond directly to unforeseen events or are they required only to notify emergency services?
4. The immediacy of the requirement to provide services.
   • Does the employee determine whether intervention is required or are they notified that intervention is required by another employee?

No single factor provided by the EAT is enough to substantiate NMW, and each factor will be weighted in each particular case. As such every employee and every circumstance will need to be reviewed.

“Each case is likely to turn on the consideration of its own particular facts. There will be cases where the line is a difficult one to draw…”

—Mrs Justice Simler
EAT Ruling on 21 April 2017

Goverment Response to Ruling

Following the Focus Care Agency Ltd v Roberts Tribunal, HMRC suspended enforcement actions against care providers through November 1 to “minimise disruption” to the sector. HMRC also waived fines against providers found to have failed to pay staff the NMW (NLW) prior to the 26 July 2017 ruling. This suspension allowed government to “develop a new enforcement scheme for the sector to encourage and support social care providers to identify back pay owed to their staff…while [ensuring] workers receive the arrears they are owed”.

Moving Forward for Care Providers

On November 1 the Department of Business, Energy and Industrial Strategy (BEIS) announced an interim enforcement regime for care providers at risk of underpayments. The BEIS scheme allows employers to opt in to a Social Care Compliance Scheme, providing 12 months to complete an internal review and an additional three months to pay any arrears. Employers who fail to opt in to the scheme are afforded no such protections.

Steps to Reduce Your Risk

1. Carefully define employee’s duties
   • Consider which employees have primary response duties and ensure contracts reflect those employees with only notification responsibilities.
2. Focus on average pay
   • Consider averaging daily and overnight (sleep-in) pay to meet the NMW (NLW) pay requirements.
3. Create a daily average agreement
   • Consider working with employees to identify unmeasured work and come up with a daily average of hours required to complete unmeasured work. Any such policy would need to be agreed upon (in writing) by both employer and employee before going into effect.
4. Implement the Accommodation Allowance
   • Employers providing full-day accommodations may sound the £6.40 per day accommodation allowance into the calculation of an employees pay.

Summary

No single plan or measure is likely to meet the needs of every care provider or employee. The circumstances of each employee’s work should be carefully reviewed and considered to create a fair, equitable and legal compensation scheme.

Should you have any questions feel free to reach out to our help line. DLP advisors are available to answer any questions you may have at 0330 400 4495.