The Court of Appeal have reversed the judgement of an earlier tribunal, which required care providers to pay national minimum wage to care workers for all the hours where they were available on a sleep-in shift but not performing work. This judgement is likely to be a massive relief for care providers across the UK, as collectively they were facing underpaid sleep-in shifts back payments totalling up to £400 million.
For many care providers the reality of making these back payments would have resulted in business closures and an end to the much needed care services which are provided.
Given that the judge remarked that the previous cases relating to sleep-ins were wrongly decided, there are two questions that many care providers may now be asking:
(i) Will HMRC reimburse care providers the fines associated with the back payments already paid out?
(ii) Can they recover the back payments paid to employees?
We will write a further blog in relation to these issues once the position becomes clear.
Moving forward the practical effect of the judgment means that:
- Any worker who performs a “sleep-in” shift should be categorised as “available for work” as opposed to “actually working”;
- Care providers can continue to pay a flat rate in respect of sleep-in shifts; and
- During sleep-in shifts only hours when the worker is required to be awake for the purposes of working, will attract national minimum wage.
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"For the reasons which I have given I believe that sleepers-in... are to be characterised for the purpose of the Regulations as available for work... rather than actually working…The result is that the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working."