UK: UK Employment And Immigration Update (August 2018)


In a case that will have huge significance within the care sector, the Court of Appeal (CA) has decided that care workers who sleep in are not entitled to the National Minimum Wage (NMW) for the entire time of their shift, but only when they are required to be awake and working. This is applicable to workers who may be woken to carry out some specific activity, but are otherwise expected to sleep the majority of the night.

This decision in Royal Mencap Society v Tomlinson-Blake and another case will fundamentally change what had thought to have been law supported by various earlier decisions of the Employment Appeal Tribunal (EAT).

Under the National Minimum Wage Regulations 2015, the pay to which a worker is entitled when sleeping during a shift depends on whether the individual is actually working throughout the period or is just on-call by being required to be available for work.

  • If a worker is working by simply being present in the workplace, even if he or she is sleeping, the worker will be entitled to be paid the NMW as they will be carrying out "time work".
  • If a worker is only required to be available at or near his or her place of work for the purposes of working, he or she is only entitled to NMW for the hours they are awake in order to work; in this situation, time spent sleeping does not need to be paid at NMW.

Facts of the Mencap Case

The claimant, C Tomlinson-Blake, was a care support worker employed by Royal Mencap Society. She provided care to two men with autism and learning difficulties in their home. Her working hours varied from day shifts to some "sleep-in" shifts. Tomlinson-Blake did not have any duties to perform during a sleep–in shift, she was merely obliged to stay at the premises and be available if needed, such as, if one of the men was unwell or needed assistance. Tomlinson-Blake was paid a flat-rate for a nine-hour sleep-in shift at the premises, and the need for assistance during that time was very infrequent. In the preceding 16 months, there had only been 6 occasions when her assistance had been required. Tomlinson-Blake argued that her sleep-in shifts constituted "time work" irrespective of whether she was sleeping or not and she lodged a claim at the Employment Tribunal. Her claim was successful, and the tribunal held that she was entitled to be paid the NMW for her entire sleep-in shifts.

The Employment Appeal Tribunal

Mencap appealed the decision of the tribunal at the EAT. The EAT approached the issue by considering whether Tomlinson- Blake was actually working during the sleep-in period. The EAT looked at the issue in light of the employment contract and its context. The fact that Tomlinson-Blake had little or nothing to do whilst on her shift did not mean that she was not working.

On the basis of the above reasoning, the EAT found that Tomlinson-Blake was working during the entire 9 hour sleep-in shift and therefore that she was entitled to NMW while on a sleep-in shift. Mencap then appealed this decision further to the CA.

The Court of Appeal

The CA overturned the EAT's decision finding that Tomlinson-Blake was only "available for work" and not actually working while on a sleep-in shift, therefore she was only entitled to NMW when she was required to be awake and working.

In reaching this decision the CA overturned much of existing case law and emphasised that there is an important difference between those that are required to undertake actual work and those who only need to be available for work. Security guards, for example, or people that are required to answer the phone through the night and may be able to nap in quieter periods, must be paid NMW for the time they work. Those who are only available to work, such as care-workers, however, are not entitled to NMW if they are able to sleep and have sleeping arrangements available to them.

Key points to note from this case

Looking at the facts, it was clear that Tomlinson-Blake was expected to sleep as opposed to work and sleep in quieter periods. There will be cases in which care workers on a night shift will be working and can possibly sleep in temporary lulls during which case they will be entitled to NMW. This decision is welcome news for care-sector employers that had potential claims for arrears of pay going back up to six years. Moreover, paying staff NMW for past shifts would be financially burdensome for some employers.

Businesses with employees who sleep-in or are "on-call" working patterns might want to review their current practices in light of this judgment.

Employment Tribunal finds British Museum's dismissal of pregnant employee unlawful

Niki Savvides, a former employee of the British Museum, has won her claim for unfair dismissal and pregnancy discrimination against the institution.

Facts of the case

Savvides was employed by the British Museum on a one-year fixed-term contract. She was a training coordinator on a project to teach Iraqi archaeologists excavation and site management methods. The project was due to run for five years and Savvides expected that her role would continue along with the project.

Towards the end of her contract in early 2017, Savvides notified the museum of her pregnancy, and she had initial discussions surrounding maternity cover. However, a short time later the museum changed the emphasis of her role, and she was made redundant. Savvides contended that the new role of project coordinator was so similar that she would be offered the position, however the museum chose to advertise externally and Savvides was told she would have to apply for the new role.

Savvides was unfortunately unable to attend her interview for the new position because of complications with her pregnancy. Upon informing the museum that she would be unable to attend as she was off sick, she was told her application had been withdrawn. Savvides was supported in her case by the union Prospect who presented a claim for automatic unfair dismissal on the grounds of pregnancy and maternity and discrimination on the grounds of pregnancy.

The Employment Tribunal

The Employment Tribunal (ET) found that because of the changes to the job role, there was a genuine redundancy situation. However as Savvides was well-suited to the role, she should have been offered the position, and therefore the dismissal was unfair. Marion Scovell, the head of Prospect legal said, "The law provides special protection for pregnant women facing a redundancy situation. In this case the tribunal recognised that she should have been offered any suitable vacancy and the museum's failure to do this made the dismissal unfair."

The ET also held that the museum should not have withdrawn Savvides's application for the new position when she told them she could not attend the interview due to her pregnancy, and held that this action was discrimination. Savvides has been awarded an undisclosed financial settlement.

Key points to note from this case

Although this case does not introduce any new law, it does serve as a stark reminder of the additional protection that is afforded to pregnant woman or those on maternity leave during a redundancy situation.

New Guidance on Overtime from the Advisory, Conciliation and Arbitration Service

Advisory, Conciliation and Arbitration Service (Acas) has produced new guidance on overtime compensation that reminds employers that any guaranteed or non-guaranteed overtime should be clearly set out in an employee's terms and conditions. It also reminds employers that while they may require employees to work overtime hours for no additional pay, a worker's hourly rate must not fall beneath the National Minimum Wage. As an alternative to pay, an employer may offer "time off in lieu", meaning that the individual can take back the amount of hours he or she worked in overtime in addition to annual leave. However, again, Acas reminds employers that working additional hours to take the time back at a later date should not take the worker below the National Minimum Wage for that pay reference period. The new guidance also covers the following:

  • voluntary overtime
  • guaranteed and compulsory overtime
  • compulsory but non-guaranteed overtime
  • the limit to how much overtime can be worked
  • pay when working overtime
  • alternatives to paying staff for working overtime
  • overtime for part time workers
  • impact of overtime on holiday calculations The new guidance can be found in detail on the Acas website.

In other news...

  1. Figures from the Acas annual report has shown that the number of people considering bringing a claim to the Employment Tribunal has risen by 30 percent per week in the year since the Supreme Court declared Employment Tribunal fees unlawful. The annual report published on 18 July 2018, notes that a higher number of notifications have gone on to become claims lodged at an employment tribunal. Overall, year on year notifications to Acas increased by 19 percent and the number of cases that went on to tribunal rose by 39 percent.
  2. Netflix has dismissed its head of communications for twice using the "n-word" during meetings. Jonathan Friedland had used the word in a "descriptive" sense on two occasions. He first used the word in a public relations meeting about sensitive words and then again a few days later in a meeting with two black staff from the human resources department, who were discussing the first incident with him. Friedland did apologise to those who had raised concerns about his use of the word in the first meeting, but the head of Netflix, Reed Hastings, told his staff he needed to "set a better example" and decided he had to let Friedland go. He said his "low racial awareness and sensitivity" was not in line with the company values. Netflix has said that they will educate all staff about the ways that race, nationality, and gender identity affect its organisation.
  3. It has been estimated that skipping breakfast will cost an employee 82 minutes of their working day due to a lack of focus. This can have a large impact on the productivity and efficiency of a business. Some employers are recognising this and attempting to encourage their employees to start the day right by organising team breakfasts, ensuring their employees are fueled and energised for the day ahead. Not only does this bring nutritional benefits to staff, it also improves team morale. Business breakfasts are a good team building opportunity and encourage team members to bond. This is then reflected in the workplace: Employees are more likely to work better together and be more productive. A team breakfast is also a way of acknowledging and rewarding staff efforts, ensuring employees feel appreciated.


Croatian Nationals

From 1 July 2018, Croatian nationals are no longer required to obtain authorisation to work in the United Kingdom and will fully benefit from free movement rights currently enjoyed by other EEA citizens.

Previously, Croatian nationals were only allowed to work in the United Kingdom if they obtained prior authorization from the Home Office. This was known as the Worker Authorisation Scheme and required Croatian nationals to apply for an accession worker card before starting work. As a result of this requirement being lifted, employers will only need to do the Right to Work check once prior to employment and they may now accept Croatian passports as proof of right to work in the United Kingdom.

Tier 2 Sponsors should ensure that their Sponsor Management System is updated to reflect that their Croatian national employees no longer require authorisation or sponsorship under Tier 2 in order to continue working.

Croatian nationals will still be subject to the provisions agreed under the Brexit Withdrawal Agreement in the same way as other European nationals living in the United Kingdom.

Under the current draft proposals, this means that Croatian nationals may apply for settled status if they have lawfully resided in the United Kingdom continuously for five years or apply for pre-settled status if their residence has lasted less than five years. This scheme is not yet operational and will be rolled out later this year. It will be known as the EU Settlement Scheme and will be fully open by 30 March 2019. The scheme is voluntary until 30 June 2021 when it then becomes mandatory.

NHS workers and students to trial EU Settlement Scheme

EU citizens working at 12 NHS Trusts and students and staff from 3 Liverpool universities, will be invited to make real applications for settled status through the new digital process in a managed live trial.

This will allow those working on the scheme to test the system using real applicants and make improvements ahead of the launch of the scheme's phased rollout towards the end of 2018.

Applicants will be asked to attend an appointment with a Home Office representative who will help to take them through the online application process.

The pilot phase will be rolled out on an invite-only basis, and up to 4,000 applicants will be able to apply on a voluntary basis. Those eligible will be granted settled status.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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