Author Archives: Sarah Robinson

  1. Do employers have to pay staff to sleep in?

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    The case of Focus Care Agency Limited v Roberts and other cases 2017 considered three appeals involving workers carrying out sleep- in shifts where they were required to carry out duties if necessary.

    The crux of the issue in the three appeals was whether the employees who slept in so that they could perform duties, if needed, engaged in “time work” for the full duration of the shift or whether they were working for National Minimum Wage (“NMW”) purposes only when they were awake to carry out any relevant duties.

    The issue is particularly significant in the care sector where sleep-in shifts commonly arise. The three appeals raised the same broad issue: whether a worker can be carrying out time work in accordance with Regulation 30 of the NMW Regulations even in periods where he or she is permitted to sleep.

    The employees in the first and third appeals (Focus Care Agency Ltd v Roberts and Royal Mencap Society v Tomlinson-Blake) were support workers for vulnerable adults. During night shifts they had no specific tasks to carry out but they had to remain on the employer’s premises in case their help was needed. They were provided with sleeping facilities and were paid at a flat rate for the shift. Ms Tomlinson-Blake received additional pay if she was required to work for more than an hour during the night. The employees in the second appeal (Frudd and anor v The Partington Group Ltd) were a husband and wife team who worked at a caravan site and were required to live there. They were on call several nights a week and had to respond to emergency call- outs. They were paid a flat rate of £8.50 per person per call out.

    In Tomlinson-Blake the employment tribunal had held that the whole period of Ms Tomlinson-Blake’s sleep-in shifts at the employer’s premises amounted to “time work”, irrespective of whether or not she was sleeping. The employer was appealing that decision.

    In the Frudd case an employment tribunal had held that the workers were only doing time work while actually working because they were at home during periods when they were not carrying out duties. Their claim for arrears of pay under the NMW Regulations had therefore failed and they were appealing.

    In the Roberts case an employment tribunal had upheld claims of unpaid wages.

    The Employment Appeal Tribunal heard all three cases together as they raised broadly the same issue: whether a worker could be carrying out “time work” under the NMW Regulations even in periods where he or she was allowed to sleep ie he or she is nevertheless regarded as working by being present at the place of work.

    In Tomlinson-Blake the EAT upheld the tribunal’s decision that the worker was performing time work throughout her shift. The worker was required to be present on site and would have been subject to disciplinary action if she left her post. The employer was under a legal obligation to have a worker present. It was not a case where the worker was able to do as she pleased provided she remained contactable. It was held that the worker was not just available for work but was actually working and therefore entitled to be paid the NMW for the whole period during which she was present.

    In Frudd the EAT remitted the case to a fresh tribunal for a re-hearing.

    In Roberts, the EAT held that the worker was contractually entitled to be paid at a rate that was higher than the NMW for sleep- in duties.

    The ruling has been widely publicised as spelling disaster for an already overstretched care sector. Mencap has a liability of around £20 million as a result of the Roberts decision so it is not surprising that it is appealing to the Court of Appeal.

    The Government has accepted that its official guidance on the matter of payments for sleep-ins was misleading because it stated that this type of work did not qualify for the NMW. The guidance was amended in October 2016 and the Government has taken measures to support providers which not only owe arrears of pay but are also liable for significant underpayment penalties. In July this year, the Government announced that historic penalties in the care sector in respect of any underpayment for sleep-ins that occurred in a pay reference period that ended before 26 July 2017 would be waived. This followed HMRC’s investigations into allegations that employers in the social care sector were underpaying the NMW in respect of sleep in shifts. Employers found to have underpaid their staff after that date will face financial penalties in the usual way. HMRC’s enforcement activity in respect of sleep-in shifts in the care sector was suspended until 2 October 2017.

    In Focus Care Agency and Roberts, the Employment Appeal Tribunal held that it was unable to lay down a bright line for those tasked with complying with the law and that a “multifactorial test” must be applied to determine whether sleep-in shifts attract the NMW.

    The EAT held that the proper approach is to start by considering whether the individual was working during the period for which he or she is claiming/claimed. Tribunals should consider the factual matrix and whether the contract provided for the period to be part of the worker’s working hours – whether an identifiable period was specified during which work was to be done.

    The case law authorities identify the following factors as potentially relevant to an assessment of whether a worker is working merely by being present:

    (a) the employer’s purpose in engaging the worker – eg if the employer was required to have someone present by regulatory or statutory rules;
    (b) the extent to which the worker’s activities were restricted by the requirement to be present and at the disposal of the employer including whether the worker is required to remain on the premises throughout the shift;
    (c) degree of responsibility undertaken by the worker. There is a distinction, for example, between the limited degree of responsibility in sleeping in at the premises so as to be able to call the emergency services in the event of a break-in or fire and a night worker in a home for the disabled or elderly where a heavier personal responsibility is placed on the worker to carry out duties that may need to be carried out at night and (d) the immediacy of the need to carry out duties if something untoward occurs.

    The following are various scenarios:

    On call away from home with no sleeping facilities

    In this situation the worker (assuming they are not actually working) is treated as working for the whole of the time that they are available at or near a place of work for the purposes of working and required to be available for such work. This could include cases where a worker is required to sit unoccupied at the workplace, or may leave the workplace but is required to remain near to it. It would not include cases where the worker is allowed to go home or is allowed to use sleeping facilities provided by the employer at or near the workplace.

    On call at or near work with sleeping facilities

    If the worker is on call (ie required to be available for the purposes of working but not actually working) at or near a place of work, and is provided with suitable sleeping facilities for sleeping, time during the hours they are permitted to use those facilities for the purpose of sleeping shall be treated as working time but only when the worker is awake for the purposes of working.

    Time when the worker is asleep, or is awake for a purpose other than work, is therefore not treated as work. Deciding what constitutes work can be difficult in cases where the employee sleeps overnight at the workplace or has their home there.

    On Call at Home

    If the worker is on call at or near the workplace, the on-call time would generally be treated as working time. However, there is an exception where the worker is allowed to be at home and their home is at or near the workplace. In such cases, the on-call time is not treated as working time and only actual work would be counted.

    On 2 November 2017 the Government resumed minimum wage enforcement for healthcare providers after having previously extended its suspension in respect of sleep-in staff. The Voluntary Social Care Compliance Scheme will give healthcare providers that have failed to pay the minimum wage three months to pay back pay to sleep-in staff. Those that opt-out will be subject to HMRC’s usual enforcement regime.

    It is important to point out that section 31 NMWA 1998 makes it a criminal offence to:

    Refuse or wilfully neglect to pay the NMW
    Fail to keep the required records
    Keep false records
    Provide false records or information
    Intentionally obstruct or delay an enforcement officer
    Refuse or neglect to answer questions or provide information to an enforcement officer

    Given the impact of the Roberts decision, any organisation that requires staff to sleep-in would be well advised to err on the side of caution and pay pending further clarification. If you would like further advice or information about this, please contact one of our team.

  2. Advice for Employers during the Olympic Games

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    Big sporting events often present dilemmas for Employers who need to maintain a healthy and productive staffing level.
    With the Rio games taking place between the 5th and 21st August 2016, Acas has issued guidance for those Employers who are concerned about the potential impact and problems that could arise.
    We summarise some of the key points from the Acas guidance:
    Whether or not you currently operate a flexible working policy, it may be something to consider as a short term measure throughout the period of the Olympic Games. Employees could for example be permitted to come in a little later or finish sooner, provided that the time is later made up.
    Allowing staff to watch some of the more popular events at work or listen to the radio might be another option.
    It is important to remember the importance of applying a fair and consistent policy during this period.
    Time off
    Employees may wish to take time off to watch some of the sporting events. Whilst normally Employers require annual leave to be booked well in advance of the event, they may choose to relax the rules during this time, in order to consider late requests for work.
    Again, it is important for Employers to try to be fair and consistent when allowing time off. The games coincide with the summer holiday period so employers may also be receiving requests from parents who are trying to balance work and childcare. Employers may wish to adopt a “first come first served” policy for booking leave during this period.
    Sickness Absence
    Levels of attendance should be monitored carefully during this time and if there is a pattern of unauthorised absence noted then it could result in formal proceedings.
    Use of Social Media and Websites
    To avoid employees making increased use of their own personal devices and/or work equipment to watch coverage of the games, Employers may wish to remind staff of their social media and use of internet policies.

  3. Drivers take Uber to employment tribunal over employment status

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    The employment tribunal case, if successful, could have important ramifications for Uber’s operations in the UK.
    The facts basically are that Uber, a taxi booking app, makes use of self-employed workers, to whom they do not guarantee basic employment rights. Uber considers drivers self-employed “partners” on the basis that they are able to enjoy the flexibility of picking their own hours and being their own boss.
    Uber drivers supported by their union, are seeking to argue that Uber should be classifying them as having “worker status” rather than self-employed, because of the work that they do. If their claim succeeds this would entitle Uber drivers to basic employment rights such as the national minimum wage, paid holidays, and the rights to maternity and paternity leave, to name a few.
    There has historically been a lot of confusion between the status and rights associated with employees, workers and the self-employed.
    If you are self-employed then you are generally in business on your own account.
    European legislation introduced a broader category of “employee” by introducing the concept of a “worker”. Workers are individuals who carry out work or perform services for another party who is not a client or customer of any business or profession carried on by the individual so this will include short term casual workers, agency workers or contractors. They are guaranteed similar rights to employees, in that they are entitled to receive holiday pay, sick pay, national minimum wage and are protected from unlawful deductions from their pay.
    It will certainly be interesting to see how the Tribunal rules on this matter, given its wider implications. We shall be reporting on the outcome so watch this space for more updates on this case.
    If you require advice to determine the correct status of those you work with or employ then please do not hesitate to contact the Employment Law Team at 0115 988 6211

  4. Employment Tribunal orders Leeds United to pay £290,000.00 to Lucy Ward

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    Leeds United football club (“the Club”) have been ordered to pay their former employee Lucy Ward in the region of £290,000.00 following her successful employment tribunal claim, earlier this year.
    Ms Ward was employed as the club’s welfare and education officer for 17 years, claimed she was unfairly dismissed from her role by the Club’s owner Massimo Cellino on account of her relationship with her partner and former head coach Neil Redfearn. Mr Redfearn has previously been dismissed by Mr Cellino.
    Leeds United argued that Ms Ward was dismissed for exceeding her annual holiday entitlement. They claimed that Ms Ward had failed to work on a Wednesday and that she had been taking excessive unauthorised leave in order to work as a commentator for the BBC. Ms Ward’s legal team argued that her working pattern was well known and had been agreed with her line manager. Furthermore she had not been spoken to about these working practices which had been in place for 11 years.
    At the tribunal the Judge preferred Ms Ward’s evidence and ruled that the alleged reasons for the club terminating Ms Ward’s employment were a “sham” and agreed that the Club had taken a “sexist” view.
    Ms Ward is reported to be delighted that her case has concluded with a judgment that is reflective of the losses she has suffered. From the £229,000.00, the Club have been ordered to pay £127,229.81 for sex discrimination, £5,525.00 for unfair dismissal and £55,500 in respect of Ms Ward’s liability to pay tax to the HMRC. The club has also been ordered to pay Ms Ward’s legal costs which are reported to be in the region of £100,000. The judgment from the tribunal case also reveals that the Club’s senior staff including Mr Cellino & the club have been ordered to take part in equality training.

    If you are concerned by any of the issues raised in this article then please contact the employment team

  5. Pendleton –v- Derbyshire County Council & Governing Body of Glebe Junior School

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    The EAT has held that terminating the employment of a Christian teacher over her refusal to end her marriage to a headteacher convicted for sexual offences amounted to unfair dismissal and indirect religious discrimination.

    The facts
    Mrs Pendleton’s employment was ended from her teaching post following her husband’s convictions for voyeurism and making indecent images of children. Mrs Pendleton and her husband both worked at different establishments, she also had an exemplary record. The school at which she worked dismissed her on the basis that she had elected to maintain her relationship with her husband following his convictions. Mrs Pendleton argued that as a practising Christian her marriage vows were sacrosanct, they had been made with God and as such they were an expression of her religious faith. It was accepted that Mrs Pendleton had no prior knowledge of her husband’s wrongdoings.

    The Employment Tribunal held that Mrs Pendleton had been unfairly dismissed but her claim for indirect religious discrimination failed. Mrs Pendleton appealed the decision and the Employment Appeals Tribunal (EAT) allowed her appeal to succeed on the basis that the Employment Tribunal had failed to give proper consideration to the question of particular disadvantage to the claimant.
    The EAT held that on the facts Mrs Pendleton was placed at a particular disadvantage by the school’s policy of dismissing those in her situation and that there was no justification for the dismissal, as those sharing the Mrs Pendleton’s religious beliefs would suffer a disadvantage and an additional moral dilemma in making a decision to divorce a Partner. Hence the indirect discrimination suffered by Mrs Pendleton was unlawful.

    Indirect religious discrimination can take place when a workplace rule, practice or procedure is applied to all workers, but disadvantages people who hold a particular religion or belief. In some limited circumstances, indirect discrimination may be justified if it is necessary for the business to operate.
    Whilst the circumstances of this case are unusual, the issues concerned still serve as an important reminder for employers to tread with caution towards an employee on account of their untoward associations with a family member/partner .
    If you require any advice in relation to conducting disciplinaries or on any of the issues discussed in this article, please do not hesitate to contact our employment team on 0115 988 6211

  6. Can your employer force you to wear high heels?

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    High heels have provoked controversy this month and all because an outsourcing agency sent home Nicola Thorp, following her refusal to wear a two to four inch heel in the workplace.  Ms Thorp complained that her male counterparts were not expected to comply with the requirement  and has since commenced a petition seeking to empower women with the choice of whether they should wear flat shoes or heels in the workplace. The petition has amassed in excess of 100,000 signatories which now means that this issue will have to be debated in parliament.

    This widely reported case has caused questions to be asked over whether it is an unlawful requirement to ask female works to wear high heeled shoes in the workplace.

    The Legal position

    Employers have a duty under health and safety legislation to ensure that their employees/workers are wearing safe and suitable clothing and footwear in the workplace. So for example a dress code that requires a female worker to wear a four inch heel on a construction site, would clearly fall foul of an employer’s obligations to ensure the safety of their employee. Arguably insisting that a female worker wears heels in an office environment to portray a corporate image to clients is less likely to breach health and safety. However there is ample medical evidence to support that wearing high heels for any length of time especially for those employees that have pre-existing conditions can cause/ exacerbate back and joint damage.

    Employers are also under a duty under the Equality Act 2010 not to discriminate against its employees on the grounds of sex, and this is very much the angle that the media have capitalised on with this story. If an employer is requiring a female worker to wear heels to promote a “sexy image” of its workers then not only is this tantamount to direct sex discrimination but arguably if it goes on to create a working environment which violates the female worker’s dignity, creates a hostile, degrading, humiliating, offensive environment then it equates to harassment.

    Employers may have a Dress Code policy that sets out a standard of dress and appearance for their organisation. It is important that any policy should be non-discriminatory and should apply to men and women equally, as well as accommodating various religious requirements.  It is possible for standards to differ within these rules for example a policy may state “smart business dress” for women but may state that men must wear a “smart shirt and tie””.

    The ACAS guidance on Dress Codes states that:

    • Employers must avoid unlawful discrimination in any dress code policy.
    • Employers may have health and safety reasons for having certain standards.
    • Dress codes must apply to both men and women equally, although they may have different requirements.
    • Reasonable adjustments must be made for disabled people when dress codes are in place.

    Whilst it is not necessarily unlawful to require female workers to wear high heels an employer will certainly risk health and safety and possible discrimination issues if they do so.

    Given the above rationale it is hard to understand why it was not acceptable for Ms Thorp to continue with her duties whilst wearing a pair of smart flat shoes. It is noteworthy that the Company concerned has now amended its dress code to allow its female workers the choice to now wear flat shoes.

    If you would like advice on your dress codes, then contact one of our employment experts at Nottingham on 0115 988 6211 or London on 0207 408 9427.


  7. Do your employees have the right to privacy in the workplace?

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    The recent European court of human rights judgment in the case of Barbulescu –v- Romania 2016  ECHR incited much media attention with much of the national press providing the misleading impression that employers can now legally snoop on your private emails.

    Facts: Mr Barbulescu brought a claim contending that his employer had contravened his human rights, more specifically his right to respect for a private life.

    At the request of his employer Mr Barbulescu had been requested to set up a yahoo messenger account to manage work enquiries. The Employer had a strict policy which forbade personal use of the internet. It was unclear throughout this case whether the Employers strict policy had been communicated to Mr Barbulescu. Mr Barbulescu was subsequently dismissed by the Company as a result of sending personal emails and messages during his work time.

    Decision: Against this background it was decided that Mr Barbulescu’s right to private life had not been breached as the employer’s surveillance & monitoring was reasonable & proportionate.

    What does this mean for employers?

    Contrary to the headlines projected through the media. This decision does not give Employers carte blanche to monitor employee’s emails and messages. The lesson to note from this case is that the right to a private life is not breached where an employer exercises “reasonableness” when monitoring personal emails. The court in this instance did not deem it unreasonable for an employer to want to verify that it’s employees were completing their professional tasks during work hours. Employers must continue to have clear policies expressed on such matters and should communicate these clearly to it’s employees. The case also serves as an important reminder for Employers to have in place effective social media and IT policies.


  8. Extending the right to Shared Parental Leave

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    The recent budget has confirmed that the first consultation on extending the right to shared parental leave to grandparents would commence in May 2016. This would certainly appear to be a very practical move from the government, especially given the increased numbers of grandparents that nowadays assist with childcare.

    Ahead of potential new legislation, Santander has recently announced that it would extend its shared parental leave scheme to include grandparents in order to provide their employees with greater flexibility. We will keep you posted on any new developments.

  9. The National Living Wage

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    The new national living wage comes into force on the 1st April 2016 and applies to workers over the age of 25 at the rate of £7.20.

    For workers under the age of 25, the rates will remain unchanged.

    The current rates are as follows:

    21-25 years- £6.70 per hour.

    18-20 years- £5.30 per hour

    16 -18 years- £3.87 per hour.

    Critics of the wage have suggested that employers may attempt to circumvent the effects of the increased costs to their business by actively recruiting younger employees, which would be tantamount to age discrimination. Recently companies such as Tescos and Morrisons have announced that they would be cutting back on extra remuneration for employees working unsocial hours in a bid to fund the boost to pay rates. B&Q is reported to be planning to cut Sunday pay and reduce its bank holiday rates whilst increasing its basic pay above the government’s national living wage.

    It will be essential for employers to ensure that they pay their employees the correct hourly rate. The penalties for non compliance will be 200% of the amount owed to the employee, unless the arrears are paid within a 14 day period.

    The maximum penalty fine for non payment of the correct hourly rate will be £20,000 per worker. Employees who fail to make payments can be banned from being company directors for up to a period of 15 years.

    It will be interesting to see further reaction to this topic in the up and coming months.

  10. Be clear about tips and gratuities this Christmas

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    Following a Government investigation into how businesses in the hospitality sector treat tips and gratuities, bars and restaurants are urged to put in place a clear policy in the lead up to Christmas.

    The Government investigation came about following protests by the union, Unite and others.  Pizza Express attracted criticism for imposing an administrative charge of 8% on tips paid by card.  If tips are not fully passed on to workers, customers should be made aware of this.  Problems arise when the procedure for handling tips and gratuities is not transparent and can cause negative publicity amongst staff and customers.

    There is currently no requirement for employers to pass all tips and gratuities on to their staff but regulation could be forthcoming.  Employers may wish to consider whether to deduct an administration charge for distributing tips and gratuities in the future in view of the current negative publicity surrounding this practice.   Businesses are advised to use an HMRC approved system to manage tips and gratuities to avoid incurring significant tax liabilities and potential claims for unlawful deductions from staff.

    For further information or for a draft policy, please contact us on 0207 408 9427 or 0115 9886211 or email us at