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National Minimum Wage back pay for sleep-ins: latest on appeal

Last year, an Employment Appeal Tribunal (EAT) decision led to many workers becoming entitled to National Minimum Wage (NMW) for the whole of their shifts, including time spent asleep. This led to the government creating the Social Care Compliance Scheme (SSCS) and commissioning research into the impact of the liabilities for NMW on the social care sector.

The Court of Appeal is due to hear the appeal against the EAT decision on 20-21 March 2018 and Care England has now been granted the right to intervene in the appeal. This will allow new arguments to be considered in the case which had not previously been raised.

It will be interesting to see what new arguments will be raised as part of these appeals and some commentators are seeing this as a lifeline for the care sector. However, government guidance has already been amended to reflect the EAT decision.

In addition, there has been a decision in the European Courts which decided that ‘on-call’ time spent at home would amount to working time where the worker was restricted on where they should be. Although this case related to the Working Time Regulations rather than NMW, it does appear to indicate that the courts are more willing to accept that time is spent working than had previously been the case.

You should therefore continue to consider your potential liability for underpayment/arrears and whether or not to join SCCS on the basis of the current guidance.

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