Worker's Rights - Back Pay For Underpaid Sleep-In Care Workers

A new compliance scheme was launched back in November 2017 for social care providers that may have incorrectly paid workers below the minimum hourly rate for full shifts. This relates to sleep-in or night shift care workers who were paid a fixed rate rather than the hourly National Minimum Wage.

How did it come about?

For years, the UK Government and the HMRC allowed employers to pay sleep-in or night shift carers a flat rate, which for some workers was as little as £30.00 per shift. Following two Employment Appeal Tribunal cases in 2016, in which support workers took their employers to employment tribunal to challenge how they were being paid for sleep-in shifts, this all changed.

The tribunal ruled that support workers should be paid the hourly National Minimum Wage for sleep-in shifts, with up to 6 years back dated payments.

The Social Care Compliance Scheme

To help assist social care providers who may have underpaid workers, the Government introduced the Social Care Compliance Scheme (SCCS) which providers may opt-in to through applying to the HMRC. Once in the scheme, providers will be required:

to conduct a thorough self-review within 12 months in order to identify any wage arrears; and
to repay any wage arrears to workers within three months of identifying the wage arrears.

All payments of arrears must be made to workers by 31 March 2019, regardless of when the provider enters the scheme.

What if a social care provider does not opt-in?

Employers who do not opt in will be subject to full HMRC investigative processes, possible financial penalties (up to £20,000 per employee), public naming and potential prosecution where appropriate for the most serious cases.

Advice for care support workers

If you or anyone you know within the social care sector, believe that you may have been underpaid for sleep in shifts within the time that you have worked with your employer, you can contact ACAS on 0300 123 1100 to make a complaint.

This complaint will then be sent to the HMRC who will check whether a complaint has already been logged against the employer or if the employer has already voluntarily opted into the scheme. If they have, you will be notified. If they have not, HMRC will write to the employer and encourage them to sign up to the compliance scheme as soon as possible.

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