HMRC has updated its calculating the minimum wage guidance – specifically around pay for sleep-in shifts, which has been an area subject to much case law over the past few years and is a major issue for the care sector.
The section on sleep-in shifts has been updated to explain HMRC’s latest position on this issue. It reflects the law as it currently stands as determined by the Court of Appeal’s judgment in the joined cases of Mencap v Tomlinson-Blake and Shannon v Rampersad ([2018] EWCA Civ 1641.
The guidance clarifies that: “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.However, if suitable sleeping facilities are not provided then minimum wage must be paid for the entire shift.”
It goes on to explain that: “The position is different where workers are working and 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).In this case it is likely minimum wage must be paid for the whole of the shift on the basis that the worker is in effect working all of that time, including for the time spent asleep.”
Determining whether the National Minimum Wage (NMW) should be applied will differ depending on the individual circumstances of the employment arrangement. If you (the employer) are unsure about the arrangements you have in relation to the NMW you should contact the Acas Helpline on 0300 123 1100.