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We want to know if you have been asked to give your PA back pay for sleeping in

03 August 2017

HMRC has announced that it will waive financial penalties but will continue to demand the minimum wage and up to 6 years back pay for carers sleeping overnight. 

An employment appeal tribunal (EAT) ruling against Mencap ruled that carers sleeping overnight to provide safety and reassurance should be be paid the national minimum wage for all hours.

This does not apply to all carers who sleep overnight but the ruling may affect anyone employing a personal assistant (PA).

Sue Bott, Deputy CEO of Disability Rights UK, told the Disability News Service that she had heard from at least two disabled people who employ PAs and have been under investigation by HMRC. She said the tribunal appeal ruling could have “far-reaching consequences” if it was confirmed by the court of appeal.

“You can imagine the difficulty it will cause individual employers. I do think it’s right that PAs are paid the national minimum wage for each hour. In principle, I do think that’s right, but obviously I am concerned given the lack of resources in health and social care and how difficult it would be for individual employers to respond to a retrospective demand. People just don’t receive enough money in their personal budgets to be able to pay national minimum wage for every overnight hour.”

Disability Rights UK would like to hear from anyone employing PAs, or who knows of anyone employing PAs, who have received demands from HMRC for back pay for sleepovers. Contact feedback@disabilityrightsuk.org

HM Revenue and Customs (HMRC) have issued a statement which says it:

  • Re-affirms its expectation all employers pay workers according to the law, including the National Minimum Wage, which is explained in guidance entitled “Calculating the National Minimum Wage”
  • Will waive financial penalties faced by all employers found to have underpaid their workers for “sleep-in” shifts, when those shifts took place before 26 July 2017
  • Has adopted a policy of suspending HM Revenue and Customs enforcement activity concerning payment of “sleep-in” shifts by social care providers, which will apply until 2 October 2017
  • Will work with representatives of the social care sector, during the period of that suspension, to see how it might be possible to minimise any impact on provision of social care as a result of this situation

Any arrears must still be paid and employers are expected to comply with the EAT ruling.

The Guidance on calculating the minimum wage has a section on ‘sleeping between duties’, which says:

“Employers must ascertain whether a worker is still subject to certain work- related responsibilities whilst asleep, to the extent that they could be deemed to be ‘working’.

A worker, who is found to be working, even though they are asleep, is entitled to the minimum wage for the entire time they are at work. Workers may be found to be ‘working’ whilst asleep if, for example, there is a statutory requirement for them to be present or they would face disciplinary action if they left the workplace. They would then be entitled to the minimum wage.

There can be situations, however, where a worker is only available for work and is permitted to sleep and suitable sleeping facilities are provided at the workplace. In those cases, the individual will not be ‘working’ and the minimum wage will not be payable. However, the individual must be paid the minimum wage for any time they are awake for the purpose of working.

Under these situations it will depend on the nature of the work-related obligations to which the worker is subject while they are asleep.”

You can read more on the EAT rulling on Hempsons website.

Disability Rights UK and LITRG have published free factsheets on all aspects of employing a PA.