Do you pay national minimum wage to employees who are permitted to sleep at work?
As reported in our May newsletter, the EAT has recently considered whether ‘sleep-in’ time counted as ‘time work’ for the purpose of the National Minimum Wage Regulations and set out a number of relevant factors for employers to consider.
Now, the HMRC who is responsible for enforcing the Minimum Wage Regulations, has updated its Policy on Enforcement, prosecutions and naming employers who break National Minimum Wage law to provide that no financial penalty should be imposed in cases of underpayment attributable to the treatment of time when the worker was working and was permitted to sleep in a pay reference period before 26th July 2017.
The issue is whether the employee is ‘working’, a question not as simple as it seems but reviewing your working practices in light of the relevant factors and the Government guidance, Calculating the minimum wage, is the best guidance we currently have.
Whilst the HMRC is turning a blind eye to activities prior to July 27th 2017, an employee who is not paid the NMW can of course bring a claim for unlawful deductions from wages under section 13 of the Employment Rights Act 1996 within three months of the deduction.