Response to Royal Mencap Society v Tomlinson-Blake

In Royal Mencap Society v Tomlinson-Blake, the Court of Appeal has reversed the judgement of an earlier tribunal, which had determined that care providers must pay National Minimum Wage (NMW) to care workers for all the hours where they were available on a sleep-in shift, even when not performing work.

This judgement, which determines that NMW does not apply to hours when the carer is not providing work will come as a massive relief for care providers across the UK, as collectively they were facing underpaid sleep-in shifts back payments in the region of £400 million.

In her blog post, our colleague, Amanda Boyd, at Markel Law has referenced the case and has raised two important queries arising from the judgement:

(i) Will HMRC reimburse care providers the fines associated with the back payments already paid out? 
(ii) Can they recover the back payments paid to employees?

As Amanda notes, we do not have the answer to these queries as yet, but in recent months Abbey Tax has experienced a significant increase in the number of calls concerning the National Minimum Wage/National Living Wage (NLW) from advisers seeking advice and support in relation to this complex area. 

It is clear from the above that NMW compliance is extremely high on the government agenda, and this seems to be borne out by the increased number of calls to Abbey Tax. Given that all complaints by members of the public to HMRC are investigated, coupled with the punitive penalty regime, it is a risk area that advisers should be discussing with their clients. 

We have a proven track record of successfully resolving disputes and have built up a wealth of experience in this specialist area. We are currently assisting clients that already have NMW/NLW enquiries ongoing as well as assisting those who, whilst not under enquiry, are concerned by the complex nature of the legislation and wish to ensure their compliance with the NMW/NLW guidelines.

For more information on how we can help in this area please email us or call 0345 223 2727.
Found in: HMRC, Public sector
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