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carer looking after an elderly patient

No pay for overnight shift workers when they sleep

22nd March 2021 by No pay for overnight shift workers when they sleep

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It has long been thought that requiring an employee to be at or near their place of work during the night was ‘working’ even if the employee was required to sleep. Typically, these arrangements exist in the care and nursing sectors.

Not so, has said the Supreme Court.

The Case

Two individuals, Mrs Claire Tomlinson-Blake and Mr John Shannon, had their cases heard recently by the Supreme Court. The ramifications of the court’s decision will be relief to employers, but huge disappointment to those on the frontline.

The two cases turned essentially on the same question:

Should an individual who is required to be present or near their place of work, but could sleep for some or all of the time they are there, be paid the National Minimum Wage (NMW) throughout?

The Decision

The court said no, on the basis that someone cannot be ‘working’ if they are asleep. They are only entitled to minimum wage when they are required to be awake for work.

The reason that the decision is important is because the court had to wrestle with previous court decisions that were different in their outcome. The court rectified some previous misunderstandings of the relevant law in its decision.

You can read more on the case here;  https://www.bailii.org/uk/cases/UKSC/2021/8.html

Implications moving forward

At a time when the nation has praised the work of all carers, it is hard not to see the decision as a blow to those working in the industry. However, for care providers in particular who faced huge salary costs in relation to overnight care, the decision will be welcomed. In addition, they could have faced claims for back pay and tax liabilities.

‘It is important to remember that the case focussed on the interpretation of some very technical and difficult legalisation. The court was mindful of the need to recognise the work carried out by carers, but its role was of legal interpretation, not public policy and funding’, said Robin Watson, Head of Employment at Laceys.

There could be an impact on other sectors who require employees to work in similar ways. All employers who act on the decision need to react sensitively and carefully and seek specialist legal advice.

‘Working time and the National Minimum Wage legalisation is far from easy to navigate, even for the most seasoned of employment lawyers or judges,’ said Robin. ‘Employers should never casually interpret court decisions or employment legislation without specialist legal advice, especially around such sensitive topics as pay and working conditions’ advised Robin.

Robin encourages employers effected by the decision to get in touch to talk about how to address the consequences, whilst trying to maintain good employee relations. Existing contractual terms should be reviewed with advice.

If you would like any further information please contact Robin Watson in confidence on 01202 755204 or email r.watson@laceyssolicitors.co.uk

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