October/November 2018

Key developments over the summer

Sleeping on the job
In the recent case of Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad the Court of Appeal considered whether care workers, who were contractually required to provide sleep in shifts as part of their work were entitled the national minimum wage (“NMW”) for these shifts.

The care workers were paid a fixed sum for the sleepover shift; Mrs Tomlinson-Blake was paid additional sums if called on during the night for more than an hour, and Mr Shannon received free accommodation all year round in addition to the fixed sum. The workers argued that they were not being made the NMW during these periods on the basis that the whole sleep-in shift constituted time work or salaried hours work.

The employment tribunal and the Employment Appeal Tribunal decided that the workers were required to be paid during these sleeping shifts for a number of reasons including the fact that if care was required during the night, they would be required to wake up and attend to it.

The Court of Appeal disagreed and considered that whilst some workers, such as night watchmen might sleep as part of their shifts, whilst being at work, the care workers who perform sleep in shifts are different. The Court decided that the essence of a “sleep-in” contract is that the worker, by arrangement, sleeps at the workplace and is given suitable facilities for doing so. Under such a contract the worker is available for work, but is not actually working, and the sleep-in exception in the Working Time Regulations applies.

The workers should only be paid for the time that they were required to provide care during the night.

This decision represents a significant change in the way that care workers who are required to perform sleep in shifts are treated. However, employers should not rush to change these workers contracts unilaterally (without consultation) otherwise they could face breach of contract and/or constructive unfair dismissal claims. Additionally, Ms Tomlinson-Blake has appealed the Court of Appeal’s and we await the Supreme Court’s decision in this matter. Until that decision is known, the position is not settled.

Quarterly employment tribunal figures released
The Ministry of Justice has published employment tribunal statistics for the period April to June 2018. The figures show that there was a significant 165% rise in the number of single claims to the tribunals compared with the same period last year. This goes to show the dramatic effect of the abolition of the tribunal fees which happened in July 2017.

It now costs nothing for a claimant to bring a claim in the employment tribunal. Potential claimants are required to go through the ACAS pre claim conciliation process for the majority of claims before they are allowed to issue. This process is also free to both potential claimants and respondents. The fees were criticised for being set at a level which was too high and therefore prevented access to justice for those who could not afford the fees to bring their claim at tribunal. The costs of bringing a claim ranged from £390 for the most basic claim, to £1,200 for more complex discrimination cases. Many businesses have argued that there should be some fee system in place to ensure that claimants are serious about bringing claims.

The government has not announced any plans to address this and as such employers need to be more alive than ever to the risk of any potential claims.

Labour’s proposals for workers rights
At the TUC conference in Manchester on 11 September, the Shadow Chancellor John McDonnell announced radical plans for workers’ rights if Labour wins the next election. He revealed a package of measures including the extension of full employment rights such as sick pay and unfair dismissal protection to all gig economy workers. He also said Labour would ease restrictions on industrial action. Plans to oblige companies with over 250 employees to create profit-sharing ownership funds for workers were also unveiled.

It is likely that the announcements will not be popular with business owners who regularly utilise causal workers, or use zero hours contracts. The extension of employment rights to these workers would have a significant impact on a business’ ability to use a flexible workforce. Meanwhile, general secretary of the TUC Frances O’Grady made a speech on the possibility of technological advances paving the way for a 4-day working week by 2020.

Chloë Leyland
Enhanced HR Solutions Ltd