Gordons Legal Employment Update – 12 May 2017

National Minimum Wage and “Sleep-Ins”

There has been an EAT decision regarding the issue of whether workers are entitled to receive the National Minimum Wage when they are either “on call” or sleeping at work (for example, a carer working a sleep-in shift).

The EAT heard three cases at the same time, with the lead cases being Focus Care Agency v Roberts. In this case, the EAT considered whether the Employment Tribunal in each case had correctly decided that the ‘sleep in’ time counted as ‘time work’ under the National Minimum Wage Regulations. In the event that ‘sleep ins’ were found to be time work, the workers would be entitled to be paid for the full period they are on shift, rather than for just those times in the shift when they are awake and working.

Unfortunately the EAT was not able to give a definitive answer to the question and stated that a multifactorial approach should be taken based upon the employee’s individual circumstances. These factors include:

The employer’s particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether, and the extent to which, the worker is working by simply being present.

The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else.

The degree of responsibility undertaken by the worker may be relevant: see Wray & J W Lees at [13] where the EAT distinguished between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night.

The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.”

Comment: As every case is going to be slightly different, it is important that employers realise that there is not a “one size fits all” approach to these types of cases. In light of the potential sanctions that can be put into place for non-payment of the National Minimum Wage (including criminal sanctions), it is important that specialist advice is sought before deciding to only pay employees for the time that they are actually awake and working on a sleep-in shift.

Multiple Choice Tests and Disability Discrimination

In Government Legal Service v Brookes, the Claimant, who has Asperger’s syndrome, applied for a trainee solicitor role with the Respondent. The first stage of the process was a “situational judgment test” (SJT) which was in multiple choice format. The Claimant requested in advance to be permitted to submit her answers in a narrative format because of her condition. The Respondent declined her request and informed her that there was no alternative test format available, although time allowances would be made. The Claimant failed the SJT and her application for employment was not permitted to proceed on that basis. She brought claims in the Employment Tribunal for discrimination arising from disability, indirect disability discrimination and failure to make reasonable adjustments.

The Employment Tribunal upheld the Claimant’s claims. The Respondent then appealed to the EAT, whose findings were as follows:

The relevant provision, criterion or practice (PCP) was the Respondent’s requirement that all applicants took and passed the SJT, which placed people with Asperger’s at a disadvantage (on the basis that Asperger’s sufferers lack social imagination which results in difficulties with imaginative and counterfactual reasoning in hypothetical scenarios) were not challenged. However, the Respondent did challenge that the Claimant was put at that disadvantage. The EAT concluded that the Employment Tribunal’s reasoning was “impeccable and beyond reproach” and that it was entitled to find that the reason why she had failed to reach the pass mark was because she had Asperger’s and the additional difficulty that would put her under due to the multiple choice format of the SJT;

For the purpose of the indirect discrimination claim, whilst the PCP pursued the legitimate aim of testing a fundamental competency of the applicants for the role, the means of achieving it were not proportionate and there were less discriminatory means of achieving the aim, for example, putting the Claimant’s requested adjustments relating to the test into place;

For the purpose of the discrimination arising from claim, the requirement to take the SJT in its unaltered form was discrimination arising from disability which could not be objectively justified.
Comment: It is important to remember that discrimination law applies before, during and after engagement and therefore is relevant in a recruitment context. As such, serious consideration should be given to all requests that applicants make for reasonable adjustments.

Collective Bargaining

In Lidl v (1) Central Arbitration Committee (“CAC”), (2) GMB the Court of Appeal heard an appeal against the refusal of a judicial review against a declaration of the CAC which recognised the GMB.

The GMB had sought recognition for Lidl’s warehouse operatives in Bridgend. The warehouse staff for whom recognition was sought amounted to around 1.2% of Lidl’s total workforce. Lidl did not have any recognition agreements in place with any other trade unions.

The parties were unable to agree whether the proposed bargaining unit was “appropriate” and the matter fell to the CAC for determination. Lidl’s case was that it considered that the bargaining unit was not appropriate on the basis that it was too small for purpose, was not “compatible with effective management” and could lead to fragmentation on both a local and national basis. The CAC determined that the proposed bargaining unit was appropriate.

Lidl issued proceedings for judicial review, which was rejected. Lidl then appealed to the Court of Appeal with the primary submission being that judge had not properly construed the requirement of the CAC to take into account the “desirability of avoiding small fragmented bargaining units within an undertaking”.

The Court of Appeal held that the CAC was correct and the issue of fragmentation does not apply where there is a single bargaining unit and there was no evidence of demand elsewhere.

Comment: This decision is a victory for Trade Unions who are seeking recognition for discrete units, such as individual stores or distribution centres.

Breach of Minimum Wage Regulations

John Lewis and Waitrose have discovered a payroll error that has breached the minimum wage regulations. After discovering the breach, the company has subsequently set aside £36 million to cover back pay, national insurance contributions, pension contributions and other associated costs.

In addition, Tesco, Argos and Debenhams are amongst other companies that have also paid back wages this year.

Comment: This serves as a useful reminder of the obligation to pay employee’s in accordance with the minimum wage regulations. The consequences of breaching these regulations could lead to a significant fine and HMRC are able to publish names of companies that do not comply.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.