Are you being paid the national minimum wage? 30 March 2022 at 10:37AM in Employment, jobseeking & training 20 replies 1.5K views

MSE_Rosie

This is the place to discuss our new National minimum wage guide.

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joff70

Just stumbled on this,  Where do these now guidelines stand towards sleep in back pay and the Mencap verdict as of March 2021?   I worked for 12 years in social care Learning Disability services and worked on approximately 2 sleep ins a week £30 for a 8H on site on call which was attached onto a 12 day shift  (so would go home the next morning)  I worked for the NHS so my wages were over NML and so the trust to conform to the law as they told us would average out our wages with hours (which would bring hourly rate just above NML). We questioned at the time that this meant that we were then being paid below the advised hourly rate for pay, but got no were, even when  we highlighted dependent on sex and circumstance some workers did no sleep in shifts so those on these shifts were paid more per hour then those working on there rota sleep ins???  Again no response and after over 5 years there are no answers to this question!!!

Savvy_Sue

I'd contact your trade union about this: you're unlikely to be the only one. 

Jillanddy

joff70 said:

Just stumbled on this,  Where do these now guidelines stand towards sleep in back pay and the Mencap verdict as of March 2021?   I worked for 12 years in social care Learning Disability services and worked on approximately 2 sleep ins a week £30 for a 8H on site on call which was attached onto a 12 day shift  (so would go home the next morning)  I worked for the NHS so my wages were over NML and so the trust to conform to the law as they told us would average out our wages with hours (which would bring hourly rate just above NML). We questioned at the time that this meant that we were then being paid below the advised hourly rate for pay, but got no were, even when  we highlighted dependent on sex and circumstance some workers did no sleep in shifts so those on these shifts were paid more per hour then those working on there rota sleep ins???  Again no response and after over 5 years there are no answers to this question!!!

As I understand it there is no ruling that enforces backpayment, and in most cases it would be impossible to calculate it anyway.

I am not sure what you think happened in that case, but Mencap won. So the Supreme Court said that they did not have to pay the backpay. The Supreme Court decided, whether one agrees or not, that sleep-in shifts are not the same as waking shifts, and that the NMW was not due to be paid unless a worker was awake and working. Therefore, in order to have any kind of potential case, you would need to be able to evidence exactly which times during those shifts that you were awake and working. Those are the only hours for which NMW applies. And that is still the case. Then you would need to find a court that has jurisdiction. Technically if you can prove a debt you can make a claim in civil courts, but only for 6 years back in England and Wales, 5 in Scotland. Then the NHS will point out that the law doesn't recognise this debt, so it would have to go to an employment tribunal, who would throw out the case because it happened more than 3 months ago. 

In other words, right or wrong, what was done is done; and the situation is still far from satisfactory going forward.

Nmwspecialist

This is amazing that you and the MSE team are spotlighting this very important issue. The legislation is full of pitfalls which employers fall into regularly. Underpayments are NOT just for those paid at or close to NMW rates - I regularly see cases where employees are paid in excess of £40K pa and are found to have underpayments.
I'm a former HMRC NMW investigator turned advisor so have a unique skill set to answer any NMW query.

Nmwspecialist

joff70 said:

Just stumbled on this,  Where do these now guidelines stand towards sleep in back pay and the Mencap verdict as of March 2021?   I worked for 12 years in social care Learning Disability services and worked on approximately 2 sleep ins a week £30 for a 8H on site on call which was attached onto a 12 day shift  (so would go home the next morning)  I worked for the NHS so my wages were over NML and so the trust to conform to the law as they told us would average out our wages with hours (which would bring hourly rate just above NML). We questioned at the time that this meant that we were then being paid below the advised hourly rate for pay, but got no were, even when  we highlighted dependent on sex and circumstance some workers did no sleep in shifts so those on these shifts were paid more per hour then those working on there rota sleep ins???  Again no response and after over 5 years there are no answers to this question!!!

This is indeed a complex area - one which requires a little more detail before I can start unpicking it for you. NMW calculations are completed slightly differently based on the NMW worker category (as defined by NMW legislation). Do you know if you were a / time worker / salaried worker / unmeasured worker? The final category is output worker, however I do not expect you to fall within that boundary as a care worker.
A worker category is the foundation to NMW compliance and how to check if you are underpaid. @joff70 do you know what category you were in at the time?  Where you paid by the hour or receive an equal salary each pay period over the year?

Jillanddy

Nmwspecialist said:

This is amazing that you and the MSE team are spotlighting this very important issue. The legislation is full of pitfalls which employers fall into regularly. Underpayments are NOT just for those paid at or close to NMW rates - I regularly see cases where employees are paid in excess of £40K pa and are found to have underpayments.
I'm a former HMRC NMW investigator turned advisor so have a unique skill set to answer any NMW query.

Hmm. Really? 7 posts? Not touting for business I hope? I'm sure you're skills will be useful on the site. On the site. 

Nmwspecialist

Jillanddy said:

Nmwspecialist said:

This is amazing that you and the MSE team are spotlighting this very important issue. The legislation is full of pitfalls which employers fall into regularly. Underpayments are NOT just for those paid at or close to NMW rates - I regularly see cases where employees are paid in excess of £40K pa and are found to have underpayments.
I'm a former HMRC NMW investigator turned advisor so have a unique skill set to answer any NMW query.

Hmm. Really? 7 posts? Not touting for business I hope? I'm sure you're skills will be useful on the site. On the site. 

@Jillanddy - genuine professional - just sharing my expertise in this complex area. I’m new to this forum but hope to help others if needed.

Jillanddy

Nmwspecialist said:

Jillanddy said:

Nmwspecialist said:

This is amazing that you and the MSE team are spotlighting this very important issue. The legislation is full of pitfalls which employers fall into regularly. Underpayments are NOT just for those paid at or close to NMW rates - I regularly see cases where employees are paid in excess of £40K pa and are found to have underpayments.
I'm a former HMRC NMW investigator turned advisor so have a unique skill set to answer any NMW query.

Hmm. Really? 7 posts? Not touting for business I hope? I'm sure you're skills will be useful on the site. On the site. 

@Jillanddy - genuine professional - just sharing my expertise in this complex area. I’m new to this forum but hope to help others if needed.

And that's great. But people need to exercise caution. 

lindos90

Please can I ask how the minimum wage increase will be applied to people who are paid a month in arrears? Will the new minimum wage be applied to the first 'payment' made in April, or for wages 'earn't' from April? The MSE guide says "The new rates are applied to your first full pay cycle after 1 April." so I'm not quite sure which one that is describing.

Jillanddy

You are only paid the increase for periods worked from the date of the increase. It is not about when you receive the pay, but when you worked for the money. You are right - the sentence is confusing. The "pay cycle" for many people is one week or one month in arrears, but refers to the period of work. So most monthly paid people get paid, for example, from 1st of a month during or at the end of that month. As you are casual, it seems from your other post that your April pay doesn't get paid until the end of May. In which case that is where you will see the increase, but only applied to any wages from 1st April. Does that make sense? I know you may have some back pay from March, but the increase won't apply to that.