Sleep-in pay crisis – are you ready for the Mencap appeal decision?

It is essential that you are ready for any of the possible outcomes of the case and start preparing your strategy, if you haven't already done so. If the ruling maintains the current position that sleep-in shifts are working time, HMRC are likely to ramp up inspections and enforcement action. You will need to consider:

• whether to join the Social Care Compliance Scheme (if you haven't already)
• what other legal grounds you may have to challenge HMRC enforcement action, and
• whether, and how, you could meet any financial liability to staff and HMRC.

Thorny HR issues ahead

It is also time to start planning how to deal with the broad range of HR issues that may arise, whatever the outcome of the case, particularly given the significant profile of the Mencap case and increased awareness amongst staff.

By way of example:

• It is common for providers to comply with the minimum wage regulations by 'offsetting' (or averaging) enhanced day rates against underpayments for sleep-in shifts. Whilst this is compliant with minimum wage law, will it come under new challenge from staff and trade unions?
• If you increase sleep-in rates to the National Minimum/Living Wage rate, how will you manage the likely resentment of some staff who are being paid the same amount when awake and working as other staff are paid to sleep?
• How will you address the Working Time Regulations implications of sleep-in time being working time? It is common for care staff to work back-to-back late, sleep-in and early shifts but this could breach limitations on night working hours under the Working Time Regulations.
• Where staff complain that their rights under minimum wage laws have been breached, it is possible that they will be protected under whistleblowing legislation. Care will need to be taken to avoid giving rise to any potential whistleblowing claims.