The Queens Speech May 2021

The Queens speech contained around 30 announcements for forthcoming legislation making it one of the largest announcements in living memory.  Here is a brief synopsis of what we can expect over the next few years.

The Government’s priority is to deliver a national recovery from the pandemic that makes the United Kingdom stronger, healthier and more prosperous than before.  To achieve this, my Government will level up opportunities across all parts of the United Kingdom, supporting jobs, businesses and economic growth and addressing the impact of the pandemic on public services.

The Government will protect the health of the nation, continuing the vaccination programme and providing additional funding to support the NHS.  Ministers will bring forward legislation to empower the NHS to innovate and embrace technology.  Patients will receive more tailored and preventative care, closer to home via a new Health and Care Bill.  Measures will be brought forward to support the health and wellbeing of the nation, including to tackle obesity and improve mental health.  Proposals on social care reform will be brought forward.

The Government will build on the success of the vaccination programme to lead the world in life sciences, pioneering new treatments against diseases like cancer and securing jobs and investment across the country.

Ministers will oversee the fastest ever increase in public funding for research and development and pass legislation to establish an advanced research agency via the Advanced Research and Invention Agency Bill.  Following the unprecedented support provided to businesses during the pandemic, proposals will be brought forward to create and support jobs and improve regulation.

The Government will strengthen the economic ties across the union, investing in and improving national infrastructure.  Proposals will be taken forward to transform connectivity by rail and bus via the High Speed Rail (Crewe – Manchester) Bill and to extend 5G mobile coverage and gigabit capable broadband via the Product Security and Telecommunications Infrastructure Bill.

Legislation will support a lifetime skills guarantee to enable flexible access to high quality education and training throughout people’s lives via a Skills and Post-16 Education Bill.

Measures will be introduced to ensure that support for businesses reflects the United Kingdom’s strategic interests and drives economic growth the Subsidy Control Bill.  Laws will simplify procurement in the public sector the Procurement Bill.  Eight new Freeports will create hubs for trade and help regenerate communities the National Insurance Contributions Bill.

The Government will ensure that the public finances are returned to a sustainable path once the economic recovery is secure.

Measures will be brought forward to ensure that children have the best start in life, prioritising their early years.  Ministers will address lost learning during the pandemic and ensure every child has a high quality education and is able to fulfil their potential.

The Government will help more people to own their own home whilst enhancing the rights of those who rent.  Laws to modernise the planning system, so that more homes can be built, will be brought forward, along with measures to end the practice of ground rents for new leasehold properties the Planning Bill, Leasehold Reform (Ground Rent) Bill.  Ministers will establish in law a new Building Safety Regulator to ensure that the tragedies of the past are never repeated the Building Safety Bill.  Measures will be brought forward to address racial and ethnic disparities and ban conversion therapy.

Legislation will support the voluntary sector by reducing unnecessary bureaucracy and releasing additional funds for good causes the Dormant Assets Bill, Charities Bill.

The Government will invest in new green industries to create jobs, while protecting the environment.  The United Kingdom is committed to achieving net zero greenhouse gas emissions by 2050 and will continue to lead the way internationally by hosting the COP26 Summit in Glasgow.  Legislation will set binding environmental targets the Environment Bill.  Legislation will also be brought forward to ensure the United Kingdom has, and promotes, the highest standards of animal welfare the Animal Welfare (Sentience) Bill, Kept Animals Bill, Animals Abroad Bill.

Government will strengthen and renew democracy and the constitution.  Legislation will be introduced to ensure the integrity of elections, protect freedom of speech and restore the balance of power between the executive, legislature and the courts Electoral Integrity Bill, Higher Education (Freedom of Speech) Bill, Judicial Review Bill, Dissolution and Calling of Parliament Bill.  Ministers will promote the strength and integrity of the union.  Measures will be brought forward to strengthen devolved Government in Northern Ireland and address the legacy of the past Northern Ireland (Ministers, Elections and Petitions of Concerns) Bill, Legacy Legislation.  The Government will introduce measures to increase the safety and security of its citizens.

Legislation will increase sentences for the most serious and violent offenders and ensure the timely administration of justice Police, Crime, Sentencing and Courts Bill.  Proposals will be brought forward to address violence, including against women and girls, and to support victims Draft Victims Bill.  Measures will be brought forward to establish a fairer immigration system that strengthens the United Kingdom’s borders and deters criminals who facilitate dangerous and illegal journeys New Plan for Immigration Legislation.

My Government will lead the way in ensuring internet safety for all, especially for children Draft Online Safety Bill whilst harnessing the benefits of a free, open and secure internet.

Ministers will provide our gallant Armed Services with the biggest spending increase in thirty years, taking forward their programme of modernisation and reinforcing the United Kingdom’s commitment to NATO.  Ministers will honour and strengthen the Armed Forces Covenant, placing it in law Armed Forces Bill.  Measures will be introduced to provide National Insurance contribution relief for employers of veterans National Insurance Contributions Bill.

Legislation will be introduced to counter hostile activity by foreign states Counter-State Threats Bill, Telecommunications (Security) Bill.  Ministers will implement the Integrated Review of Security, Defence, Development and Foreign Policy.

The United Kingdom will host the G7 Summit and lead the global effort to secure a robust economic recovery from the pandemic.  Ministers will deepen trade ties in the Gulf, Africa and the Indo-Pacific.

The  Government will continue to provide aid where it has the greatest impact on reducing poverty and alleviating human suffering.  Government will uphold human rights and democracy across the world. It will take forward a global effort to get 40 million girls across the world into school.

New guidance on Sleep Overs and the National Minimum Wage

Following on from the Supreme Court ruling in the case of Royal Mencap Society Vs Tomlinson Blake the government has revised its advice for employers who require employees to sleep over regarding the rate of pay for such sleepovers says Chris Wilkinson from Expert HR Solutions Limited.

The Supreme Court ruled that there is no entitlement to the NMW for time spent asleep during an employees’ shift.  The Court held that NMW law contained provisions in relation to sleep in shifts that meant the claim had to fail.  However, they also made it clear that this only applied to shifts where it is expected the worker will spend time asleep.  Helpfully, the government has provided case studies where they believe the ruling would and would not apply, we have reproduced these below.

Case study 1 – worker spending time awake but woken only occasionally to perform tasks.

A worker is provided with sleeping facilities and expected to sleep most of the night, but is required to keep open a ‘listening ear.’  They spend some of the shift awake reading a book in bed for pleasure while keeping a listening ear, but can sleep during that time if they prefer.  They are not entitled to the NMW whilst they are awake reading or sleeping as in both cases, they are not awake for work purposes.

Case study 2 – worker taking calls on a night shift

A worker answers very occasional telephone calls on a nightshift and is expected to sleep in a suitable bed for most of the night between calls.  The worker is only eligible for the NMW for the time spent awake for the purpose of answering calls and performing other duties.

Case study 3 – worker permitted to nap during working shift

A worker is permitted to take a nap in a chair between regular tasks.  They are expected to be awake for the purpose of working for most of their shift, and so would be entitled to the NMW for the entire shift.  They are also entitled to the NMW because no suitable sleeping facilities have been provided.

Case study 4 – worker woken to deal with an emergency but not required

A worker who is expected to sleep most of the night is woken to provide back-up to another worker dealing with an emergency.  They get dressed and sit near their co-worker, but it turns out they are not needed and are able to read their newspaper for an hour.  They are still awake for the purpose of working and so are eligible for the NMW for that hour.

Case study 5 – worker woken frequently contrary to original expectation

A worker expected to sleep for most of the night.  Initially the worker is only woken occasionally to work.  Only the period for which the worker is actually awake for the purpose of working is included in the NMW calculation. This is a new case precedent says Chris and it is entirely possible that the guidance may change.  We would advise if you have employees who need to sleep over you call us on 01202 611033 if they have had to get up during the course of the night to discuss.  We will keep up to date with any changes to the guidance but are not likely to re-issue this blog, it will simply be updated on our website.

Changes to Employment Law 2021

At the Boardroom Network event on 29th April 2021 we delivered an animated video on the expected changes to Employment Law in 2021.  Some of these changes are already in force but all will require changes in the way you act as an employer.  It is a short 7-minute watch and can be seen on our YouTube channel or below.

Changes to Employment Law 2021

If after watching, you have any questions then please give us a call on 01202 611033 and we will be happy to help.

Managing ill-Health

Managing ill-health at work is a challenge for employers because it means balancing the needs of the affected employee, the effect on other employees (who may have to cover), the cost and the employer’s ability to deliver on its customers’ needs says Chris Wilkinson from Expert HR Solutions Ltd.

The location of the balance point varies from case to case depending on the individual circumstances but also on broader factors such as employer brand, demographic changes, sick pay entitlement and the legal framework. The Government has set out its latest thinking in the ‘Health is everyone’s business’ consultation document.  Here at expert HR we thought you might like a brief synopsis since this may well underpin future legislation.

Employers are already under a duty under the Equality Act 2010 to proactively consider making reasonable adjustments in the workplace for disabled employees.  The consultation considers introducing an additional right for employees who have been absent from work with ill health for four weeks or more to request workplace modifications.  This is intended to operate in a similar way to the right to request flexible work, which means the employer will be able to refuse a request on legitimate business grounds.

Chris believes the operation of two parallel rights has the potential for creating confusion and legal risk.  The alternative, he suggests, would be to extend the right to request reasonable adjustments to all employees experiencing long-term ill-health.

The consultation considers strengthening statutory guidance to encourage employers to make early and proportionate efforts to support employees in a return to the workforce before any dismissal can take place. 

It is not clear whether any statutory guidance or code would apply to all employees or only those who already have unfair dismissal protection.  If it applied to all, that would significantly widen employment protections.

The consultation considers allowing statutory sick pay to be paid (pro rata) during phased returns to work, as well as simplifying the rules on qualifying days.  It also proposes to extend SSP eligibility to those below the lower earnings limit.  Payment would be at 80 per cent of wages. 

The consultation discusses a number of wide-ranging options for intervention in the occupational health market to increase the provision of occupational health services, and encourage innovation and the development of quality standards.  The consultation recognises that SMEs, in particular, find it difficult to access occupational health advice and that there is a need to support them in making purchasing decisions.  While not committing, at this stage, to offering financial support, the consultation seeks views on how co-funding could work.

The consultation is looking into a wide range of measures intended to help employees with health issues remain in the workplace for longer and to support employers to facilitate that. The key will be ensuring any measures adopted do not also create unnecessary additional administrative burdens for employers or unintended legal risks. The consultation closes on 7 October 2019.

Disability Discrimination

Chris Wilkinson from Expert HR Solutions says there has been a worrying increase in disability claims in Tribunals.  He warns Employers that whereas in most cases the Award for any transgression is capped in the case of Disability Claims there is no such cap so the financial cost of being found liable can be crippling.  There do not appear to be any proposed changes to legislation, along the lines of gender and ethnicity pay gap reporting, but TUC research suggests that the disability pay gap is approximately 15%.  No new legislation does not mean there have not been any significant rulings in cases which set precedents for the future, here are the most significant ones says Chris.

In Tesco Stores v Tennant, the Employment Appeal Tribunal (EAT) decided that a claimant could not rely on alleged discriminatory acts that occurred before her depression had lasted for 12 months, which was the point at which it became a disability.

Under the Equality Act 2010 a physical or mental condition can qualify as a disability when it has lasted for 12 months, is likely to last for at least 12 months or is likely to last for the rest of a person’s life.  In this case there had been no evidence showing that the condition was likely to last for 12 months and the employment tribunal had erred in allowing the claimant to rely on alleged discriminatory acts which occurred before 12 months had elapsed.

This does not mean claimants must wait 12 months before claiming disability discrimination.  In many cases there will be evidence at a much earlier stage that the condition is likely to last for at least 12 months.  Chris says this case shows the importance of getting a professional opinion on the prognosis in any ongoing sickness case either via a GP’s or Occupational Health report.

In Jakkhu v Network Rail, the claimant alleged her dismissal was by reason of her disability.  The dismissal was later retracted and the claimant was re-engaged.  The EAT decided that withdrawing a dismissal did not prevent it from being a potential detriment.

This case demonstrates that in all forms of discrimination claim, and whistleblowing claims, not all defects can be rectified on appeal.  Sometimes, the initial decision itself is a detriment and not all the damage can be undone, or as Chris suggests make sure your policies and processes are compliant and follow them.

In Bailie v ADM Investor Services International, the employer appointed another employee to act as co-head with the claimant of its equities and fixed income department, because the claimant suffered from depression due to an excessive workload.  Possible changes to the department had been discussed with the claimant, but the appointment of someone to act alongside him was made without consultation with him.  The employment tribunal found that this amounted to an act of disability discrimination.

This case illustrates how steps capable of being presented as reasonable adjustments (e.g. reducing workload to assist recovery) can undermine an employee, causing them a detriment, if they are implemented without following a proper process.

In a case that could have significant ramifications across the UK, an appeal has been lodged in the Scottish EAT in Davies v Scottish Courts and Tribunals Service to determine whether the effects of the menopause can qualify as a disability under the Equality Act 2010.

It seems clear that the effects of the menopause are capable of amounting to a disability.  The real significance of this case may be that it concerns a historically under-litigated issue that affects so many people.

Holiday Reference Period

In amongst the pandemonium of the Covid 19 pandemic the Government has change the law on how holiday pay must be calculated from 6th April 2020.  If you employ people on ANY of the following types of Contract this affects you:

  • Irregular Hours;
  • Zero Hours;
  • Short term contracts;
  • Have granted unpaid leave;
  • Term time only;
  • Pay on a monthly basis but pay varies;
  • You want to apply for the Furlough grant.

The permutations are complicated says Chris from Expert HR Solutions.

Increasing the Reference Period

The Reference Period is the duration you must use to calculate the average salary for anyone who does not receive a fixed weekly salary, it used to be 12 weeks, but from 6 April 2020 it has been increased to 52 weeks.

Some Key Points

  • Anyone who has not worked for you for 52 weeks you can simply pro rata it down to the number of weeks they have worked;
  • A week is defined as starting on a Sunday and ending on the next Saturday and only complete weeks should be used;
  • If an employee has not been paid in any of the previous 52 weeks you must keep going back up to 104 weeks or until you have 52 weeks of data.

Salaried workers

  • For those workers paid monthly, but where their pay varies (for example, depending on the amount of work done) you will need to use the holiday pay reference period;
  • In most cases, it will not be possible to simply use 12 months of pay data, as it will not correspond accurately with a 52-week holiday pay reference period;
  • In the case of a worker paid monthly, if that worker takes a day’s leave mid-week then the first week used to calculate their holiday pay will be the preceding week’s pay earned between Sunday and Saturday;
  • When the 52-week reference period begins and / or ends part way through a monthly pay period, use the hours worked to calculate how much pay was earned for the part of the month that does fall within the reference period;
  • Exclude parts of the month where the worker is on unpaid leave.

Workers paid a Fixed Hourly Rate

  • If a worker does not have normal working hours calculate their weekly earnings by using their records of hours worked.
  • Under the old system it was common to work out holiday pay for variable hours by multiplying hours worked by 12.07%, this is no longer permitted.

We have barely touched the complexity of this change, if you want any advice on how this change affects your calculations for holiday pay why not take advantage of our free review of your employment documentation and we will advise on holiday pay as well, just call us on 01202 611033.

What’s coming around the Corner?

Whilst we are all still grappling with the employment issues that Covid 19 brought with it it is important that we keep an eye on legislative changes 2021 will bring says Chris from Expert HR Solutions.

In December 2019 the Queen’s speech heralded a number of proposed pieces of legislation.  Some of these may have been overtaken by the events of the last nine months, but the key ones for HR are: 

  • Extension to redundancy protections to prevent pregnancy/maternity discrimination. 
    It is not true that you cannot make those on maternity leave redundant.  While you must not make them redundant because they are on maternity leave, you must treat all employees fairly and equally, which means including those on maternity leave in a pool with colleagues.  However, if they are selected for redundancy while on maternity leave then a woman has enhanced rights to be placed into a vacant role for which they have the skills without competitive interview.  The government intends to extend that protection for six months after the woman returns from maternity leave.

  • Introducing an entitlement to one week’s leave for unpaid carers.  In March 2020, the government issued a consultation paper and asked for responses by 3 August 2020.  In this paper they proposed allowing unpaid carers to have an additional one week unpaid leave a year.

  • Allowing parents to take extended leave for neonatal care.  Following consultation in 2019, the government published a response in March 2020 confirming that parents of babies that are admitted into hospital as a neonate (28 days old or fewer) will be eligible for neonatal leave and pay if the admission lasts for a continuous period of seven days or more.  They will be entitled to this from day one of their employment and up to a maximum of 12 weeks.  There have been no further details published, including the level of the neonatal pay.

  • Making flexible working the default unless employers have a good reason not to.
    This proposal failed to complete its passage through parliament by the end of the session, which means it will not progress.  However, although the Queen announced that legislation would be implemented to give effect to this, it is likely to have been overtaken by the events in recent months.  One of the positive effects of Covid 19 is that a lot of myths and preconceived ideas about flexible working have been firmly put to rest.

  • A new, single enforcement body for employment rights.  The intention is to have one body enforcing minimum wage, unpaid tribunal awards and the tribunal penalty scheme, regulating statutory sick pay and publicising employment rights.

  • Passing legislation to ensure tips left for workers go to them in full.  This would implement the Employment (Allocation of Tips) Bill.

  • A new right for all workers to request a more ‘predictable’ contract.  No details have yet been published, but this is to address the perceived imbalance of zero-hours contracts and may implement the Taylor Review recommendation that they be only permitted for a maximum of 12 months for any one employee.

Then there will be any fall-out from the end of the Brexit Implementation period, so deal or no deal.  If you have any questions about these or any other employment issue just give us a call on 01202 611033 says Chris.  We also promise to keep our eyes on the road ahead and keep updating you.

No Review of EU-derived Labour Laws

The Business Minister Kwasi Kwarteng has said that although under the terms of the Brexit agreement the UK is now allowed to diverge from regulations derived from Europe his Department would not be undertaking the review.  He continued that he had made it very clear to officials in the department that we’re not interested in watering down workers’ rights.

Kwarteng continued “What I’ve said on a number of occasions is that the whole point of trying to leave, of having successfully left the EU, is that we want high wages, a high growth economy and high skills. Nobody in the government is interested in whittling away workers’ rights or pursuing a race to the bottom.”

On balance says Chris Wilkinson from Expert HR Solutions this is probably the right decision, with everything else going on there are more pressing issues for the government to deal with.  In addition, he continues, the uncertainty caused by Covid 19 to both Employers and Employees does not need to be compounded by a raft of employment legislation changes.

Most experts in the field appear to agree this is good news, although the CIPD has requested again for the government to look again at how existing employment rights are enforced.  The backlog in cases says Chris is a concern to both Employers and Employees and there is a strong argument that says justice delayed by in some cases over a year is justice denied.  Improving this system would send a very strong signal that this government is committed  to protecting workers’ rights.

Particularly in these turbulent times says Chris there has to be a balance between protecting workers’ rights and helping business owners.  Sadly, he notes that Frances Grady the General Secretary of the TUC has again called for the outright banning of zero-hours contract which she says are shady employment practices that rob workers of their dignity.  Such a one size fits all claim just does not reflect the reality, there are some employees that welcome the flexibility they provide, but equally there are some employers who exploit them.

If we are to get the economy back on its feet then we need both flexibility for businesses to innovate and the swift enforcement of existing legislation.  That way the good employers will thrive and the bad ones either forced to change or go out of business. If you want help on this or any other employment issue then why not give us a call on 01202 611033, as a business owner your first call is free.

Home Working and Working Hours

We at Expert HR Solutions would like to remind all Employers who have Employees working from home that they owe them a duty of care under Health and Safety Regulations and the Working Time Directive.  This blog will hopefully remind you of the requirements.

As our homes have become offices, classrooms, gyms and relaxation spaces all rolled into one, it is easy for the lines between work and home to become blurred.  Many people feel more of an obligation to be contactable outside of their normal working hours, because remote working technology means it is always possible.  Are you encouraging your Employees to take their annual leave, or are they not doing so as they are unable to travel anywhere, and therefore feeling they may as well work?

Long working hours cause tiredness and stress and is it a healthy environment for a business to thrive in?  Employees who are tired and stressed out are more likely to make mistakes and less likely to be productive during the time they are working.  Ultimately, they may even take time off sick.

Whilst here at Expert HR Solutions we acknowledge that the right to log off is not currently set out in UK law we are aware that cases in both Ireland and France have been heard in favour of the employee and at least one instance of a substantial award to an employee of a UK company in France for excessive work over contracted hours whilst remote working.

We are of course now outside of the EU and therefore no longer required to enact into UK law any EU Employment legislation but if more EU countries pass such legislation into their national laws it might persuade the European Parliament to pass it into EU law and that could be a persuasive element for the UK to follow suit.

As an employer, it is important to be aware of the 48 hour maximum working week, and also of an employee’s rights to daily and weekly rest breaks.  Studies have shown that home workers are much more likely to work more than 48 hours.  It is an employer’s responsibility to take reasonable steps to ensure this doesn’t happen.

For now, we will need to wait and see whether an enshrined right to log off will appear in UK law, but, in the meantime, it is important that employers are aware of their current responsibilities and liabilities to ensure they avoid the pitfalls that can so easily be missed while their employees are working from home.  If you have any questions about this or any other employment law issue give us a call on 01202 611033, the initial consultation is always free.

2021 Budget Headlines

Given that the 2021 Budget was delivered whilst the UK is coming to terms with both the Pandemic and having just left the EU it must be one of the most important speeches by a Chancellor.  So, whilst we at Expert HR Solutions normally wait so that we can see the detail we thought this year we would get the headlines out to you as soon as we could says Chris.

I firmly believe most businesses will welcome the fact that Rishi Sunak has extended the Furlough scheme until the end of September 2021.  In fact he went further by saying that the Government would continue paying 80% of employees’ wages for hours they cannot work, but that Employers would not be asked to contribute until July (10%) and 20% in August and September.  The self-employed grant scheme will be widened to include about 600,000 more recently self-employed people.

For those on Universal Credit the £20 uplift will be extended for another six months.  The NLW will be increased from April to £8.91 per hour and will apply to workers over the age of 23 rather than 25 as was the case last year.  The NMW rates will also increase as follows: workers aged 21 – 22 to £8.36 per hour, workers aged 18 – 20 to £6.56 per hour and workers aged 16 – 17 to £4.62 per hour.  That is an average increase of 1.9%.

For those of you who employ or are thinking of employing Apprentices or traineeships the incentive grants for apprenticeships to rise to £3,000 and £126 for traineeships.  Good news for the struggling hospitality sector with the VAT cut to be maintained at 5% until September and then an interim 12.5% rate to apply for the following six months.  The business rates holiday for firms in England will continue from April until June and he announced funding to the tune of £5bn for re-opening grants for non-essential businesses of up to £6,000 per premises.

The UK economy is now forecast to return to pre-Covid levels by middle of 2022 much sooner than previously thought.  Annual growth set to rebound by 4% this year, followed by 7.3% growth in 2022.  Mixed news on unemployment with it expected to peak at 6.5% next year, but this is lower than 11.9% previously predicted.  The Government will continue to borrow eye watering sums of money, but he predicted that debt as a share of GDP to fall from 4.5% next year to 3.5% in 2022-23.

There will be no changes to rates of income tax, national insurance or VAT, but personal income tax allowance to be frozen at £12,570 from 2022 to 2026.  The higher rate income tax threshold to be frozen at £50,270 over the same period.  Corporation tax on company profits to rise from 19% to 25% in April 2023, but it will be kept at 19% for about 1.5 million smaller companies.  In this case smaller being defined by the profit being lower than £50,000 and there will be some form of tapering to ease the passage to 25% for those with profits between £50,000 and £250,000.

Good news to help arts venues in England, including museums and galleries, re-open with a £400m fund.  There will also be a £300m recovery package for professional sport and £25m for grassroots football. We will continue to monitor the detail as it is published and will keep you all updated as required.  In the meantime if you have any questions then do give us a call on 01202 611033

Landmark Supreme Court Ruling

The Supreme Court has passed a landmark ruling in the case where two Care workers had claimed they were entitled to the National Minimum Wage (NMW) whilst required to sleep in the place of work says Chris Wilkinson from Expert HR Solutions Ltd.  The court found that provisions in existing national minimum wage legislation meant they were not allowed to count their sleep-in shifts as work time or as part of their salaried hours unless they were awake for the purpose of working.

In particular, the court cited a recommendation first made in 1998 by the Low Pay Commission, and accepted by the government as part of the NMW Regulations 1999, that sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working.  This recommendation was also included in the NMW Regulations 2015.

“The sleep-in worker who is merely present is treated as not working for the purpose of calculating the hours which are to be taken into account for NMW,” said Lady Arden in her judgement. “The fact that he was required to be present during specified hours was insufficient to lead to the conclusion that he was working.”

Experts have said employers in the care sector would be relieved with the decision which, if it had fallen in favour of the claimants, could have added millions to staffing costs.  If this judgment had gone the other way it could have bankrupted many in the care industry.

Although this decision only directly applies to workers whose main purpose is to sleep at or near their place of work it’s possible that home workers will find it more difficult to argue they are working throughout their shifts, rather than simply being ‘available for work.

Case law on the issue had previously been inconsistent, so today’s ruling would be helpful for employers in the care sector as well as others sectors says Chris.  Both the initial employment tribunal and the Employment Appeal Tribunal found that in one case the worker was not merely available for work but actually working during the night shift meaning she was entitled to NMW for the entirety of the shift. However, the Court of Appeal overturned this decision, and the Supreme Court upheld the decision by the Court of Appeal.  In the other case the initial employment tribunal, the Employment Appeal Tribunal, the Court of Appeal and the Supreme Court all dismissed his claim.

If you want help on this or any other Employment Law issue why not give us a call on 01202 611033.