Should you be paying the National Minimum Wage to employees who are required to "sleep over"? Although this is not a new topic for the care sector, a decision reached in a recent case before the employment appeal tribunal involving Mencap adds further doubt to an already frustratingly uncertain situation
Consequences of getting it wrong Wage costs may increase
Claims for back pay could date back six years
Failure to pay carries criminal penalties and fines, including the potential for doubling back pay arrears.
What do you need to do?
Mencap Society v Tomlinson-Blake - the facts Uncertainty with no clear test Is the worker there to comply with a regulatory or contractual requirement?
Are the workers’ activities restricted and would the worker be disciplined if they left the premises?
Is the worker personally responsible to take action and perform duties during the night?Is the worker responsible for deciding for themselves as to whether they need to take action during the night?
Practical steps
Approach the relevant local authority to pay more (although this is unlikely to be met with a positive response).
Consider restructuring pay across the workforce, including day rates, so the total payment made to an individual member of staff results in an average hourly rate matching the NMW. Mencap Society v Tomlinson-Blake (21 April 2017)
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.