Question to the Department for Business, Energy and Industrial Strategy:

To ask the Secretary of State for Business, Energy and Industrial Strategy, with reference to the Court of Appeal judgment on Royal Mencap Society v Tomlinson-Blake and Shannon v Rampersad made on 13 July 2018, what guidance the Government has issued on rates of pay for sleep in shifts to (a) local authorities and (b) care commissioners.

The Court of Appeal judgment overturns the previous interpretation of the law and means that “sleep-in” shifts, as defined by the Court of Appeal, no longer attract the National Minimum Wage. The Court of Appeal judgment applies both retrospectively and going forward. Government guidance on when “sleep-in” shifts should attract the National Minimum Wage has been updated to confirm that the Government has noted the judgment. That guidance will be updated shortly once Ministers have fully considered the implications the Court of Appeal judgment.

Over the past year Ministers from across the Government have been working closely on how “sleep-in” shifts are remunerated and will continue to do so.

Ministers from BEIS and the Department of Health and Social Care are liaising with local authorities and care commissioners to ensure that they have clarity on the legal position and on their responsibilities when commissioning care services.

HMRC’s voluntary Social Care Compliance Scheme remains open. Employers participating on the scheme should take note of the Court of Appeal judgment and review their pay practices accordingly. HMRC officers have been in contact directly with all employers enrolled on the scheme to set out next steps.