HMRC amend NMW guidance regarding sleep ins following Mencap decision

HM Revenue and Customs (‘HMRC’) have amended their guidance regarding the National Minimum Wage (‘NMW’) and the Social Care Compliance Scheme (‘SCCS’) following the decision that time spent sleeping during a shift does not count as time worked, therefore, is excluded from the NMW calculation.

The NMW guidance section ‘time that doesn’t count for minimum guidance wage purposes’ has been updated to include:

• Periods the worker is not working but available for work at or near the workplace when they are allowed to sleep (and a suitable place to sleep is provided).

HMRC also commented that the Government will consider the implications of the Mencap case and will update their guidance accordingly in the near future.

The SCCS guidance has been updated to remove the section ‘decide if sleep in shifts are counted as work’ as it is now clear that time spent sleeping does not count as time worked, provided there is a suitable place to sleep. HMRC have not completely abandoned the SCCS scheme as a worker may still be underpaid for the hours that they are awake due to the flat rate allowance that is paid to the worker.

Aspire Comment

The Mencap decision was a huge boost for the care sector as many feared that the NMW liabilities would bankrupt the sector. It is important to note that the decision does not mean that care sector will have zero liabilities when it comes to NMW, it is still necessary to review all your sleep in shifts paid at a flat rate to calculate whether there are any outstanding liabilities.

To read our previous article about the Mencap case click here.