Care providers urged to consult HMRC on sleep-in shifts

Care providers urged to consult HMRC on sleep-in shifts

6 August 2018

HMRC is offering to help social care providers who may not have paid workers a National Minimum Wage  for sleep-in shifts.

Underpaying employers in the social care sector can avoid fines of up to £20,000 per worker if they join the Government’s social care compliance scheme (SCCS).

The move comes after the court of appeal reversed a ruling on payment for sleep-in shifts last month. 

Last year, a court ruled that care workers should be paid the National Minimum Wage for every hour of a sleep-in shift, rather than a flat rate. Care providers criticised this decision, arguing that back payments of up to six years would cripple the sector.

In July, the courts backed down and ruled that flat-rate payments were fair. This means that sleep-in workers would only receive minimum wage when they were awake and assisting the client.

Question marks remain, however, on how this rule should be applied. The court’s judgement applied to a case where sleep-in staff were “expected to sleep for all or most of the night but may be woken if required to undertake some specific activity”.

In other cases, for example, where staff are required to perform regular checks throughout the night, the same judgement may not apply.

Contact HMRC if you need help deciding if your workers are working during sleep-in shifts.

If you think that you might have paid workers less than the National Minimum Wage, you should apply to join the SCCS. The scheme is designed to ensure workers are paid what they are owed, while limiting the impact on struggling care providers.

If you are accepted onto the scheme you won’t have to pay a fine.

This penalty currently stands at 200% of the amount owed to workers, up to a maximum of £20,000 per worker. You also won’t be publicly named and shamed as an underpaying employer.

It is not just for large employers. You may still be eligible for a fine if you employ someone as an individual to care for yourself or a family member.

You can apply to join the SCCS online. If you are accepted, HMRC will inform you about the steps that you need to take.

Last month, the Government said that, in order to protect the care sector, it would temporarily suspend enforcement activity and historic financial penalties for sleep-in care employers.

The government announced that it would:        

  • waive historic financial penalties owed by employers who have underpaid their workers for overnight sleep-in shifts before 26 July 2017
  • temporarily suspend HMRC enforcement activity concerning payment of sleep-in shifts by social care providers until 2 October 2017

A Government statement said: “Social care providers play a vital role in supporting some of the most vulnerable people in our society and workers in that sector should be paid fairly for the important work they do.”

It added that the government “will continue to look at this issue extremely carefully alongside industry representatives to see whether any further support is needed and ensure that action taken to protect workers is fair and proportionate.”

Richard Perch, Account Director with Umbrella.co.uk, said: “Large and small care providers have come under a lot of pressure recently.

“Businesses, local authorities and individuals can get advice they need to ensure regulatory compliance by using a professional contractor services firm like Umbrella.co.uk."

For more information about how Umbrella.co.uk can help your social care organisation, please contact a member of the team today. Call: 0800 121 6513.