We know that HMRC are actively enforcing the National Minimum Wage (NMW), especially in the care sector. However, their initial line of attack was on residential and nursing settings that operated “sleep-in shifts”. Whilst there are nuances, it’s now generally accepted that if someone is on-call and required to be on company premises, they are working simply by being there (whether awake or asleep) and therefore entitled to the NMW.

However, care providers operating in service users homes may perhaps have thought that they were exempt from NMW rules, because of a provision that seemed to suggest that live-in carers were “part of the family” (the same provision that applies to au pairs). For that to be the case, it would require that the worker was deemed to reside at the service user’s home. There is also provision in the National Minimum Wage Regulations 2015, which states that if workers are provided with sleeping facilities, they are only working if they are awake and performing duties. However, successive case law has determined that, unless the worker is sleeping in their own home, it’s now highly likely that the worker will be entitled to the minimum wage for all the hours spent on the client premises.

Even if employer practices have changed recently, if HMRC are pursuing a claim on behalf of the workers, they can look retrospectively. And if underpayments are identified, they can potentially seek to recover sums from as long as six years prior to the issue of court proceedings.

Providers are in an extremely difficult position, particularly with some local authority funders still refusing to accept the current legal position (and so provide funding). However, HMRC have a clear agenda and there is no sign that they are letting up in their pursuit of care providers yet.

If you would like your contractual arrangements reviewed and/ or some advice about minimum wage compliance, please find further information here.

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