Over the last few weeks the most common question I get asked by our clients in the Social Care Sector has been - do we know when the Mencap judgment will be published? There have been rumours that the decision will be handed down imminently, but as yet, there is nothing on the Supreme Court website to indicate that the judgment will be published any time soon.
My feeling is that the decision will be published in the next couple of months (hopefully before Christmas). I would therefore recommend that providers do plan now your response to the judgment - whichever way the decision may go.
If the decision goes in Mencap’s favour, you will need to address your future approach to payment for sleep-ins. You will need to ensure that you reward staff appropriately and remain competitive in the market but work within the new undoubtedly reduced rates that local authorities will pay. What will you communicate to staff about this and when?
If the decision goes against Mencap, it will mean looking back six years and calculating whether any back pay is due and deciding whether any payments will be made if HMRC themselves do not take enforcement action. Now is the time to decide what your approach will be if it comes to this. I anticipate that a new compliance scheme will be established inviting all providers to self assess, but it may take some time for this to be established and in the meantime your workforce inbound to ask questions about what your plans are. The decision going against Mencap would also mean an immediate need to ensure NMW is paid for all sleep-ins going forward, and the challenge here is not only the need to further funding but also how you distinguish between sleep-ins and waking nights going forward.
We have been advising many clients about their PR strategy ahead of the judgment. I would be very happy to share my thoughts with any clients that are currently considering their proposed approach.
So after two days of legal argument, the Supreme Court have now retired to reach their decision in the joined cases of Tomlinson-Blake v the Royal Mencap Society and Shannon v Rampersad. We don’t know when we will get judgement but expect it to be early summer at the earliest. So which way will the Supreme Court go?