Policy News Journal - 2017-18

Working Time - sleeping at work 3 May 2017

Are workers entitled to the national minimum wage when 'on-call', or sleeping, at work?

In a comprehensive decision, the Employment Appeal Tribunal (EAT) decides 'it depends'.

In three cases heard at the same time (with the lead case being Focus Care Agency v Roberts ), Simler P. considered whether three tribunals had correctly decided whether 'sleep-in' time counted as 'time work' for the purpose of the National Minimum Wage Regulations. Although conscious of the importance of this issue for employers and employees (in no small part because of the risk of criminal sanctions if the employer gets it wrong), the EAT was unable to give a straight 'yes' or 'no' answer. Indeed, it disapproved of the approach sometimes adopted of cases where a worker is working merely by being at the premises, and cases where the worker is provided with accommodation and is simply on-call. Rather, it held, a multi-factorial approach is required - giving considerable weight to the facts of any individual case and thus considerable leeway to an individual employment tribunal to decide. The four factors are set out at paragraph 44 of the judgment (they are too long to reproduce in this brief summary).

If you advise employers (or are an employer) which engages workers who sleep at night, read paragraph 44. The remainder of the decision shows how the principles can be applied to different factual situations.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

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Unlawful contracts 5 May 2017

An Employment Appeal Tribunal case involved sessional workers who had been recruited (innocently) during a recruitment freeze.

If someone is employed by the government in breach of the statutory provisions governing Civil Service recruitment, is the contract of employment void for illegality?

Yes, held the Employment Appeal Tribunal (EAT) in SoS for Justice v Betts and others , upholding the Justice Secretary’s appeal.

The case involved sessional workers in HM Prison Service, who had been recruited (entirely innocently) in breach of the statutory provisions governing Civil Service recruitment during a recruitment freeze. The legal backdrop is that Civil Service recruitment was governed by an Order-in-Council and then the Constitutional Reform and Governance Act 2010 , which provides for a mandatory merit-based recruitment to the Civil Service, with limited exceptions. The failure to follow the mandatory recruitment procedures set out in law rendered the contracts of employment void as ultra vires, outside the powers of the Secretary of State. Consequently, the sessional workers were not civil servants, nor were they simply employees of the Crown but not civil servants, but they were ‘workers’ under the Employment Rights Act . There was no residual power for the Crown to recruit employees other than on the statutory basis of fair and open competition as civil servants. The EAT noted the important public safeguard of an open merit-based recruitment process of those best qualified to serve, and to preserve the independence of the Civil Service.

With thanks to Daniel Barnett’s employment law bulletin for providing this update.

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Definition of Worker 10 May 2017

The Chartered Institute of Payroll Professionals

Policy News Journal

cipp.org.uk

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