Over the past week, HMRC updated their guidance for providers in the Social Care Compliance Scheme following a few weeks of radio silence. The first update, to be frank, wasn’t particularly clear or helpful and so it has been followed up with this guide.
We have been advised that all providers in the scheme have received this guide but it seems it is not the case. Can I ask any members who are in the SCCS and haven’t received this from HMRC to let me know? The upshot of it is that providers can look to work on the premise that the Court of Appeal judgement applies – sleeping time is not ‘working time’ and minimum wage may not apply but, it depends on whether a worker is available for work rather than actually working. The guidance says the position is different depending on whether the worker is expected to sleep for all or most of the shift or is expected to work for most of the shift.
The updated guidance outlines 3 examples of when this may or may not apply. Ultimately, providers need to look at each worker and what was expected of them during the sleep-over on a case by case basis – and have documentary evidence of this.
Anthony Collins have circulated a briefing that you may or may not have seen (see here). As it says providers will now be weighing up the pro’s and con’s of staying in the scheme. As you are aware we are still awaiting the decision regarding the Unison request to appeal and whether the Mencap case will be heard in the Supreme court, that in itself is key to shaping what may happen next.
We are expecting the Government to release updated guidance on sleep in shifts pretty soon – it’s been a long time coming, let’s hope it is worth the wait and is clear and sensible.
As always we will be in touch with members as developments unfold.