Employers who have failed to pay workers the minimum wage face being served with a Notice of Underpayment which can require them to not only pay the arrears to the worker/workers but also pay a fine and be publicly named.

Following the decision in Focus Care Agency v Roberts, we reported in May, that sleep-in shifts can count as work for which national minimum wage is payable. (click here to read the update)

Social Care Compliance Scheme

On 1 November 2017 the government introduced the Social Care Compliance Scheme (SCCS), an interim approach to the enforcement of minimum wage arrears which applies only to the social care sector.

Social care providers who provide sleep-in shifts can opt in to the scheme, which requires them to conduct a self-review to identify and repay any underpayments of minimum wage to their workers.

The scheme gives social care providers 12 months to carry out this review and a further three months to pay workers the outstanding money owed (and pay any additional tax and NI contributions resulting from any underpayment). The benefit to employers is that as long as the arrears are paid within this deadline the employer will not be subject to any further financial penalty and will not be named.

Once an employer has discovered that it has underpaid workers, it must then ensure that it continues to pay workers at least minimum wage from that point on.

The scheme will run from 1 November 2017 to 31 March 2019, by which time all social care providers must have shown that they have paid their arrears relating to sleeping time.

The SCSS does not prevent workers taking action against the employers in the Employment Tribunal. Coupled with the abolition of Tribunal fees and the projected increase in Tribunal claims, employers should give serious consideration to assessing their liability sooner rather than later.

It has to be said, this scheme appears a proportionate measure to try and ensure workers are paid the money they are owed whilst also ensuring employers who provide social care are not put under any further financial burden, protecting the workers and ultimately protecting those in need of care.

Further guidance on the scheme can be found here: https://www.gov.uk/guidance/tell-hmrc-if-youve-underpaid-national-minimum-wage-in-the-social-care-sector

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