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Money never sleeps, but sleep-in workers only earn whilst awake on the job

View profile for Susan Mayall
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The Court of Appeal is the most recent court to review the case of Royal Mencap Society v Tomlinson-Blake and Shannon Rampersad [2018]. Principally, the case deals with zero-hour contracts in the social-worker industry on what qualifies as paid employment, in the context of workers who have to ‘sleep-in’, in order to undertake their employment services which earn the National Minimum Wage. For the time being, the approach will be determined on a case-by-case basis, with the Courts undertaking a balancing act between the policy expectations for and of employers.

Explanation of NMW

The national minimum wage, as an economic price floor, is governed by the National Minimum Wage Regulations 1999 and 2015. The criteria requires:

1) whether the work done can be established as salaried;

2) for how long has the salaried work been undertaken;

3) are there periods where work can be “treated as being working hours”;

4) if [1]-[3] are established, then NMW must be paid for the sum of those hours.

The increasingly common zero-hour contract is driving the gig economy forward, as equally met by the recent wave of litigation in the examples of workers and employees (Sports Direct, Deliveroo and others). However, the conjoined cases of Tomlinson-Blake and Shannon Rampersad represent the equivalent for the social care industry. Statistically, the percentage of care workers on zero-hour contracts has increased from one in 10 to one in seven. Therefore, it is important to be conscientious about contracting both social workers and the utility of zero-hour contracts.

What this means for you

The important take-home point to be aware of is that the clarification will be piece-meal, on a case-by-case basis (as opposed to a wholesale change as witnessed in data protection, with the GDPR 2018).

At the start of 2016, HMRC had 130 open investigations into instances of underpayment of workers and where employers were ignoring the law.

On a practical level, the judgment referenced heavily the “expectation of sleep,” representing a distinction from previous case law, which highlighted that each business needs to be conscientious of subtleties of the work involved in their contracts of employment.

Contractually, this stressed the significance of duties undertaken towards the end of a shift, allowing five hours of permitted sleep and being provided with a mattress in the office (as opposed to a proper bed in an area set aside for sleeping). It is, therefore, necessary to be attentive to the specifics of your employees working conditions.

Significantly, the likelihood for your business in the future is that a contract will require improved detail on the dividing line between services performed whilst awake and, to what extent (how frequently) workers are allowed to be woken up and to what extent this is reflected in paid services. Indeed, to this effect, your business may have to prepare for more pronounced contracts for ‘sleep-in’ employees. By way of forewarning, the Royal Mencap Society has instigated calls for improved, higher pay for sleep-in workers.

Accordingly, it still remains true that, for example, if an individual is asked to work from 9am-1pm, Monday to Wednesday for a 12-month period, it may be more appropriate to offer a permanent part-time contract or even a fixed term contract.

The focus should advisably remain on if the individual is a worker or employee. In the latter, the rights and obligations are different in instances of employment entitlements, such as redundancy pay.

Contact

If you require assistance with any of the topics discussed in this article, you can contact Susan Mayall on 0161 684 6948 at your earliest convenience.

Please note that the information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Pearson Solicitors and Financial Advisers LLP or any of its members or employees. Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.