March 19, 2021

Supreme Court tells care providers that ‘sleep-in’ shifts are not subject to the National Minimum Wage

The decision lifts an estimated £400m burden from care providers that would have pushed many into insolvency.

Matthew Hendra, a senior associate and employment lawyer in the Health & Social Care team at Royds Withy King comments.

"The Supreme Court agrees with the Court of Appeal that sleep-in shifts are not working time for the purposes of national minimum wage laws. This will apply to all workers where the arrangement is for them to sleep on premises subject only to emergency calls.

"The Supreme Court found that Parliament had always intended there to be an exception for sleep-in shifts and they overruled a whole body of previous cases.

"It is welcome news for care providers and a crucial outcome for the sector, however, there are still some key issues that now need to be addressed.

"Care providers and employers must still ensure that workers are expected to sleep. Where interruptions are known to be frequent then it will likely be more difficult to argue that the exception applies.

"The Government, in response to the earlier ruling of the Employment Appeal Tribunal, introduced a Social Care Compliance Scheme for providers to declare their non-compliance to HMRC and repay staff.

"The Government must clarify what will happen to those providers who joined the Scheme and any HMRC enforcement action must be abandoned.

"The Government must still take the opportunity to find a sensible solution to the funding crisis affecting the sector."

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