Guidance has been published for care homes paying the national minimum wage and national living wage, including for sleep-ins.
The guidance, from the Department of Business, Energy and Industrial Strategy, states the following:
- If the employer provides suitable facilities for sleeping, minimum wage must be paid for time when the worker is required to be awake for the purpose of working, but not for time the worker is permitted to sleep
- If suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift
- If the worker is not expected to sleep for all or most of a shift, even if there are occasions when they are permitted to sleep (such as when not busy), it is likely minimum wage must be paid for the whole of the shift
- Each case may be different depending on all of its individual circumstances, including what the contract provides and what is happening in practice. If you are unsure about the arrangements you have in relation to the National Minimum Wage you can contact the Acas Helpline on 0300 123 1100
- This guidance reflects the law as it currently stands.
VODG (the Voluntary Organisations Disability Group) says the announcement follows a cross-sector letter signed by care, health and education organisations urging the government to clarify how sleep-ins should be remunerated, but still “does not help anyone nor go far enough”.
Noting ongoing legal action by Unison, there is legal uncertainty over sleep-in payments possibly until 2020, says VODG. VODG chair Steve Scown said: “Government has the opportunity to use a statutory instrument to legislate once and for so all parties are clear on what the rate of pay should be for sleep in shifts. [It] Is sitting on its hands and doing nothing until this potential legal action concludes. Without government action we will see a postcode lottery of pay rates for overnight support.”
VODG is also calling on government to:
- Confirm that the current legal position means employers will not face potential HMRC retrospective action to recover underpayment of national minimum wage for sleep in work – now or in the future.
- Provide clarity on its controversial Social Care Compliance Scheme (SCCS) in the light of new guidance.
- Work with providers and local government on a sustainable funding solution that will ensure care workers are valued and fairly paid.