Society v Tomlinson-Blake . Each case was found in favour of the claimant, though only in the Mencap case was the decision directly decisive of the national minimum wage issue. The employers in that case appealed.
The decision made by the Court of Appeal is not to count sleep-in shifts as working time, the only time that counts for national minimum wage purposes is time when the worker is required to be awake for the purposes of working.
According to UNISON the union, who took the initial case to an employment tribunal on behalf of care worker Claire Tomlinson-Blake, this legal decision is wrong, and is at odds with legal precedents and a common sense understanding of what counts as work. UNISON argued that most care workers on sleep-in shifts aren’t sleeping. Most nights they have to get up to care for people, are on constant call, and are not free to come and go from their place of work.
As a result of the judgment, UNISON is considering an appeal to the Supreme Court.
CIPP comment Last autumn the government introduced a new social care compliance scheme for providers that may have incorrectly paid workers below legal minimum wage hourly rates for sleep-in shifts. It was designed to help ensure workers are paid what they are owed, while also maintaining important services for people who access social care.
It is not clear what the Court of Appeal’s ruling means for those workers who are still owed money.
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Holiday Pay and Voluntary Overtime 18 July 2018
Another Employment Appeal Tribunal (EAT) case supports that voluntary overtime should be taken into account when calculating holiday pay.
The EAT held in the case of Flowers v East of England Ambulance Trust (EEAT) that voluntary overtime should be taken into account when calculating holiday pay, if it is paid over a sufficient period.
Various members of the ambulance crews of EEAT had clauses in their contracts relating to 'non-guaranteed' overtime (which was mandatory but irregular) and 'voluntary' overtime (which was entirely voluntary, and also irregular).
Each member of staff had varying levels of each type of overtime.
On a holiday pay claim to the employment tribunal, the ambulance crews argued that their voluntary overtime should count towards their 'normal' remuneration. On appeal to the EAT, Mr Justice Soole followed Dudley Metropolitan Borough Council v Willetts and held that voluntary overtime was part of normal remuneration if it was paid over a "sufficient period of time". That is a matter of fact for the ET.
An argument from EEAT that Dudley was wrongly decided or distinguishable was rejected.
With thanks to Daniel Barnett’s employment law bulletin for providing this update.
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Swedish Muslim wins £3,420 after indirect discrimination case 20 August 2018
A Swedish Muslim woman has won compensation after her job interview was ended when she refused a handshake.
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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