Gordons Employment Update – 17th August 2018

Sleep-in Shifts and the National Minimum Wage

The recent Court of Appeal decision in the case of Royal Mencap Society v Tomlinson-Blake, considered if carers who sleep at a client’s home are entitled to the National Minimum Wage while they are asleep.

The Claimant, Ms Tomlinson-Blake, was a care support worker. Her duties involved a sleep-in shift from 10pm to 7am for which she was paid £22.35 plus one hours pay of £6.70. At the first instance hearing the Employment Tribunal held that whole of the sleep-in shift was in fact time working and therefore Ms Tomlinson-Blake was entitled to minimum wage for that whole period.

The decision was appealed at the EAT. The EAT dismissed the appeal and held that the ET had been correct in taking a multifactorial evaluation to decide if the Claimant was doing work during the whole of her sleep-in shift.

On a further appeal to the Court of Appeal, the CA has now established that care workers who sleep at a client’s home are only entitled to the National Minimum  Wage for the time they are required to be awake for the purpose of working not for the whole of their sleep-in shift.

The key factors underpinning this decision were that as the Claimant slept at her place of work, was provided with suitable facilities for doing so and that she was to be treated as being available for work during those hours and not actually working. The fact she was required to have a ‘listening ear’ and be ready to intervene or assist was irrelevant, as this was the purpose of her sleeping in.

Comment 

This case confirms that the ‘sleep-in exceptions’ only apply to those cases where the individual is available for work rather than performing actual work. Seeking to clarify this point the Court considered the example of a night-watchman who had significant duties at either end of a shift which allowed for a short period of sleep utilising limited facilities would likely be deemed to be performing actual work for the entire shift.

This judgment is of particular importance to employers in the care sector. Had the EAT found for Ms Tomlinson-Blake it is likely that multi-million pound back pay liabilities would have arisen across the sector.

Employers who had contractual undertakings to pay the full National Minimum Wage for sleep in shifts will not be able to move to a flat rate for sleep-ins without amending the contract of employment first.

It does seem that an appeal to the Supreme Court on this matter will follow.

Holiday Pay & Overtime 

Heard in the EAT, Flowers and ors. V East of England Ambulance Trust considered the calculation for holiday pay and whether two types of overtime for ambulance workers should be included.

The Claimant ambulance workers have two types of overtime. The first is voluntary overtime, which is preplanned and paid for those covering staff shortages or holidays. The second is non-guaranteed overtime which is compulsory and not preplanned and is paid when a shift overruns (for example if an emergency occurs at the end of a shift). The Claimant’s argued that both should be factored into the calculation for their holiday pay.

The ET held in the first instance that whilst the non-guaranteed overtime was contractual and thus part of the calculation, the voluntary overtime was no-contractual and this not be considered.

The EAT, reversing the ET’s decision, held that in addition to the contractual non-guaranteed overtime, payments for the voluntary overtime should also be factored into the calculation, if such payments are so regular and recurring as to be normal and was paid over a sufficient period of time.

Comment

The case reinforces the now established ‘normal remuneration principle’; that voluntary overtime which extends over a sufficient period of time on a regular and/or recurring basis to be considered ‘normal’ should be included when calculating basic statutory holiday pay.

Employers should ensure that both contractual and voluntary overtime is factored into their calculation for employee’s holiday pay over the prior 12 weeks, if such overtime can be regarded as regular and recurring enough as to be normal.

It does appear that the NHS Trust in this case is seeking permission from the Court of Appeal to appeal this decision.

Revival of Employment Contract following Dismissal Appeal

The Court of Appeal in the case of Patel v Folkestone Nursing Home considered the legal effect of a contractual disciplinary appeal procedure in an employment contract regarding Mr Patel’s dismissal for misconduct.

Mr Patel was employed as a healthcare assistant and was dismissed by a letter of 2 April 2014 on the grounds of misconduct, having allegedly been found sleeping on duty and falsifying resident’s records. Mr Patel followed the contractual appeals process he was entitled to, but did not set out the remedy he was seeking. He was informed by a letter dated 24 June 2014 that his appeal had been successful.

Mr Patel was not satisfied with the terms of letter, which he said left important matters unresolved including failing to deal with the allegations of falsifying records. As a result he refused to return to work. He then filed claims with the Employment Tribunal, including a claim of unfair dismissal.

At first instance the ET found he had been dismissed as he could not be contractually bound by the outcome of an appeal and secondly the letter containing the revocation of the dismissal was unclear.

On appeal, the EAT overturned the decision and found that he had not been dismissed. It held that it was not necessary for the disciplinary procedure to prescribe what the effect of a successful appeal would be. It was implicit in the terms of the employment contract governing disciplinary appeals that a successful appeal would revive the employment contract.

Finally, when heard by the Court of Appeal, the EATs decision was upheld. The Court of Appeal confirmed that if an appeal against dismissal is lodged successfully the effect is that both the employer and employee are bound to treat the employment relationships has having remained in existence throughout.

Comment 

This decision acts as a reminder to Employers to ensure that any decision as to the outcome of an contractual appeal should be stated in clear terms and deal with each of the matters which gave rise to the dismissal in the first place. Falling to do so could give the employee ground for a constructive dismissal claim owing to a breach of the implied term of trust and confidence.

Stating that a contractual appeal is ‘successful’ will be likely be considered by the Court to; automatically reinstate the employee, revive the contract as having remained intact throughout and entitle the employee to be paid all back pay and benefit entitlement. It will also likely prevent an employee from succeeding with an unfair dismissal claim, as it will be difficult for the employee to establish a dismissal.

Conduct Related Summary Dismissal and the EDT

Heard in the EAT, Lancaster & Duke Ltd v Wileman considered if the effective date of termination of Ms Wileman could be extended by the statutory notce period under s.97(2) ERA 1996.

Ms Wileman was dismissed summarily for gross misconduct with no investigation, no hearing and no appeal. The misconduct related to rude and difficult behaviour. Ms Wileman was two days short of the two years continuous employment threshold and sort to relay on s.97(2) to extend her EDT.

Ms Wileman submitted a claim for unfair dismissal seeking to rely on s.97(2), which provides that where an employer dismisses an employee with less than the statutory minimum period of notice required by s.86 ERA 1996, the EDT is deemed to be the date on which the statutory notice would have expired.

In the first instance case in the ET, the Tribunal applied s.97(2), extended her EDT and found in favour of her unfair dismissal complaint. The Tribunal did not make a finding as to whether Ms Wileman was guilty of gross misconduct or not. A finding on this point was necessary as she had not brought a claim for wrongful dismissal, only unfair dismissal.

On appeal to the EAT, it was held that the EDT of an employee who was guilty of gross misconduct and summarily dismissed could not be extended by the statutory notice period under the s.97(2). The EAT found that minimum notice periods in s.86 are subject to s.86(6) which preserves an employer’s right to treat a contract as terminable without notice because of the employee’s conduct. Therefore an dismissed for gross misconduct is not entitled to statutory notice and thus cannot extent their EDT by a period of statutory notice to which they are not entitled.

The issue of Ms Wileman’s conduct amounted to gross miscount was not considered by the EAT and was remitted back to the ET for a finding to be made.

Comment 

This decision sets out that a Tribunal will consider if an employee was justified in dismissing an employee without notice before making a finding on whether the EDT can be extended or not. An employee will only be able to rely on s.97(2) when an Employer dismissed them without notice when the employer was not entitled to do so.

Hot Weather and the Workplace

As this summer’s hot weather shows no sign of abating, neither do debates over the office air conditioning and what employers can do ensure their workforce stays productive despite the heat.

The is no hard and fast ‘maximum temperature’ after which work cannot be carried out. The Health & Safety Executive states that “during working hours, the temperature in all workplaces inside buildings shall be reasonable”. What is deemed to be reasonable depends on the type of work being done (manual, office, etc) and the type of workplace (kitchen, air conditioned office, etc).

The HSE Guidance on Temperature in the Workplace can be found here.

ACAS had published guidance for employers on how to deal with the hot weather. It reminds employers that suitable drinking water must be provided in the work place and confirms that whilst employers are under no legal obligation to amend their dress code or uniform policy during hot weather, it may be prudent to relax the rules where possible.

The full ACAS guidance can be found here.