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No pay for overnight shift workers when they sleep

22nd March 2021 by Robin Watson

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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

Robin Watson

Partner — Employment and Immigration

Direct dial: 01202 755202

Email

“Robin provided excellent and honest support during an incredibly difficult time. Robin's advice and knowledge were exceptional as was the compassion shown towards me throughout this process.”

Christine Stafford

Robin studied law at the University of Southampton before achieving Distinction in a postgraduate law diploma at Bournemouth University in 2011 and being awarded the Dorset Magistrates’ Association Excellence in Advocacy Award.

Robin qualified as a solicitor with Laceys in 2011, and is now one of Laceys partners, specialising in employment law advising employers, HR Directors and managers on all aspects of complex employment law and day-to-day HR issues.

In addition, Robin completed a demanding course and examination process and qualified as a Solicitor-Advocate early on in his career. This entitles Robin to appear in all civil courts and enhances the service he can provide to clients.

Robin is able to bring his previous experience in management outside of the law and also, understands the real demands and issues involved in HR. Robin takes responsibility for the HR of Laceys which includes circa. 100 employees and so has experienced what it is really like to deal with frontline HR issues and his clients genuinely benefit from that. It enables Robin to give practical and clear advice based on real experience, as well as utilising his legal knowledge and experience.

Robin has advised and represented a national hotel and restaurant group concerning multiple redundancies and general ongoing employment law/HR support and also recently advised and represented a financial services organisation in a High Court contractual dispute.

Robin has previously advised a local charity regarding potential pay claims and represented a senior charity executive.

As part of his service Robin likes to provide training to his clients and their HR teams.

Away from work Robin enjoys cycling, cooking and eating. Lately, Robin has (again) started sketching and is trying to convince himself that he has a talent!

To find out more about Robin becoming Partner and why he chose to specialise in Employment law click here;

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