Sleep-In Payments: Supreme Court ruling may severely impact LD providers
Many of you will remember that the question of sleep in staff being paid at the living wage level when on sleep in shifts was in the news some time ago. COVID and other challenges has meant it has been resting in the long grass for a while. However, it has now returned to the front page as the issue will be going to the Supreme Court soon and a ruling that staff are to be paid the NLW for their sleep-in shifts may well sound the death knell for many LD providers .
VODG (Voluntary Organisations Disability Group) are preparing their response to the Supreme Court and Rhidian Hughes, their Chief Executive has asked that affected providers complete a short survey (in complete confidence). His e-mail is below.
Please find time to respond to the survey so that you voice can be counted!!
Dear colleagues
We are preparing to respond to the Supreme Court judgement on the status of sleep-in shifts which will be announced at some time.
This will be the final decision as to whether the hours spent asleep on a sleep-in shift constitute working time that requires payment at National Living Wage rates. The Appeal Court found that it did not, but the Supreme Court may take a different view.
If the Supreme Court decides that the hours spent asleep on a sleep-in shift are subject to the NLW then employers may be liable for any previous underpayment of the employees. The arrears are calculated on the basis of current NLW rates and the liability is for at least six years.
We want the provider sector to be ready to respond if the Supreme Court take this view and part of this response will be a robust estimate of this liability incurred by organisations.
VODG have asked Cordis Bright to approach organisations to establish the answer to four questions. If you have members that may be affected by the judgement, we are warmly inviting them to take part in this confidential intelligence gathering exercise to boost the power of the data.
If the Supreme Court decides that all hours spent by care and support staff at work, including those hours spent asleep on a sleep-in shift are subject to NLW requirements.
1. What do you calculate as your organisation’s total liability for the previous six years? Please note we realise that the precise 'start and end dates' are potentially a matter of some dispute but all we are interested in at this point is the size of the liability as you have calculated it now.
2. Does this figure include the tax you would need to pay?
3. Was your organisation signed up to the Social Care Compliance Scheme before it was disbanded?
4. Have you made any allowance for the possible payment of a fine for failing to pay the NLW? (Currently the penalties imposed on employers that are in breach of the minimum wage legislation are 200% of arrears owed to workers. The maximum penalty is £20,000 per worker. The penalty is reduced by 50% if the unpaid wages and the penalty are paid within 14 day).
The specific answers to these questions would be strictly confidential. The purpose is to try and arrive at a credible and robust figure for the sector as a whole.
In addition, if organisations wanted to contribute a short paragraph on the impact of a judgment that found the NLW applies to sleep-in shifts and how it might affect your organisation going forward this would be most welcome. Again, no specific organisation would be identified, and the quote would be non-attributable.
We are seeking responses by Thursday 21 May as this will allow enough time to process the data supplied and produce a brief report. Responses can be sent directly to Tom Noon, Chairman, Cordis Bright: tomnoon@cordisbright.co.uk. I am also happy to take any questions or queries.
Thank you for considering this.
Every good wish
Rhidian