Issues to consider post Mencap
We now have welcome clarity following the Supreme Court's decision in Royal Mencap Society v Tomlinson-Blake that only the hours a worker is awake and carrying out duties will count for national minimum wage (NMW) purposes. However, many care providers still face some difficult decisions.
In a poll from our recent webinar 25% of attendees said that they would not stop paying for sleep-ins, with 54% saying that it was too early to tell, and 21% saying that they would stop sleep-in payments if commissioners do not fund them. We also asked whether providers who had put in place top ups or a higher rate of pay for sleep-ins were concerned that this could now be contractual and 72% of attendees replied in the affirmative.
It's clear that the fallout from the Mencap decision will involve providers making some tough choices. Staff morale will have to be balanced against constraints in funding. Many providers who have been paying the NMW for sleep-ins will wish to continue to do so, but the financial viability of this will have to be considered, together with the knotty issue of whether or not a contractual entitlement to be paid the NMW for sleep-ins now exists.
- A review of your current arrangements
We can review the arrangements you currently have in place to pay the NMW for sleep-ins to determine whether or not they are contractual. We can then advise on how to consult with staff and introduce changes effectively. We can do this for a fixed fee.
- A review of your commercial contracts with commissioners
We can provide a high-level risk review of your commercial contracts with commissioners for a fixed fee. We can also provide more detailed advice on your possible options, either on a light touch basis or giving you full legal support.
- Advice on the working time implications for sleep-in arrangements
While the Supreme Court has given the final word on the NMW and sleep-ins, there are still issues to consider under the Working Time Regulations 1998. Are your sleep-in arrangements compliant with daily and weekly rest breaks prescribed under the Regulations? We can review your arrangements from a working time perspective and advise you on any changes you may need to implement for a fixed fee.
If you missed our webinar with Angela Buxton, People Director at Mencap, you can watch the full webinar below.