The HMRC has ruled that carers sleeping overnight to provide safety and reassurance should be paid the national minimum wages for all hours (even when sleeping). Employees will be able to bring claims for back pay backdated two years as an unlawful deduction of wages claim and, potentially, backdated for six years as a breach of contract claim.
In Focus Care Agency v Roberts 2016, the EAT had to consider whether a worker on sleep-in duties was entitled to be paid the national minimum wage only for those times he/she was awake and carrying out duties or for the whole of the sleep-in period. The EAT held that in this case where a care worker who was required to sleep in (because they were supporting vulnerable adults, and needed to keep an ear out and deal with incidents that might occur their sleep) was to be counted as work. See our report Sleeping in: Pay?
HMRC can take enforcement action following receipt of an online form completed by the worker, which can be found on the HMRC website at Pay and work rights complaints.
Alternatively, workers may bring a claim for arrears of sleep-in pay themselves either as an unlawful deductions from wages claim in the Employment Tribunals; or as a breach of contract claim, in the civil courts. There are advantages and disadvantages in bringing both types of claim.
Workers must bring claims in the Employment Tribunals within three months of the last sleep in period for which they did not receive full pay. In Bear v Scotland 2017 the EAT confirmed that a gap of 3 months or more in any underpayments of wages will break the “series of deductions” for unlawful deduction claims.
Current UK law confirms that workers may bring claim for a series of deductions from wages with a backdate limited to two years (see The Unlawful Deductions from Wages (Limitation) Regulations 2014).
However, whilst the Working Time Regulations 1998 were amended to confirm that claims for backdated holiday pay may not be brought as a breach of contract claim (which would have meant a 6 year backstop), this does not apply to claims for unpaid salary. This means that workers may be able to bring a claim for full pay for an entire sleep-in period backdated to 6 years. A worker has the right to bring a breach of contract claim in the civil courts for unpaid salary for up to six years after the last breach. It remains to be seen whether the government will step in to limit such claims to a backdate of two years.
Finally, an employer may be guilty of a criminal offence, if he has refused or wilfully neglected to pay the worker his entitlement.
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