It’s Heating Up

Working Time – the Latest

There has been a very helpful ruling recently regarding the calculation of pay.

Can sleeping on the job be paid?

In Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad (t/a Clifton House Residential Home) [2018] the Court of Appeal (“CA”) held that workers on sleep-in shifts were only entitled to National Minimum Wage in respect of hours for which they were required to be awake for the purposes of working, not for the whole shift.

Key facts

The cases concerned two care workers (Mrs Tomlinson-Blake and Mr Shannon) who were contractually obliged to spend the night at, or near, their workplaces. They were expected to sleep for most of the period but could be woken if their assistance was required. The care workers were paid a fixed sum for the sleepover shift. Mrs Tomlinson-Blake was paid additional sums if called on during the night for more than an hour. Mr Shannon received free accommodation all year round in addition to the fixed sum.

Our view

We appreciate that many employers will welcome the news but do take advice before acting, or not, as a further appeal to the Supreme Court is possible.

Also, whilst the judgment provides some clarity on workers who sleep at a residential care home or similar place of work while "on call" for emergencies but are merely available for work until actually called upon, it does not resolve the issue for other types of workers. In particular, in British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002], the sleep time was not considered by the CA to be incompatible with work as the telephone service provided at night was identical to that provided during day time.

Costly Discrimination Claims

Employee told to pretend she was pregnant

In Ms G v London General Transport Services & Others, the Employment Tribunal awarded Ms G (“G”) over £55k for sexual discrimination.

G attended a grievance hearing regarding alleged sexual harassment. She was interviewed by two male employees with no one else present. One interviewee told G that she should warn drivers off by telling them she was “married or pregnant” and laughed at the treatment she complained about. His comment was then trivialised by the second.

Warning for sickness absence = unfavourable treatment

Mrs O’Connor (“O”) had a disability resulting in high absence levels. Her employer eventually issued a written warning for the 60 days’ absence O had accumulated over 12 months. Her contractual sick pay would cease for future absences. O claimed discrimination arising from disability. The Employment Appeal Tribunal held that her employer had failed to follow some of its processes and although it had a legitimate aim in ensuring adequate attendance levels, the warning was not a proportionate means of achieving this (DL Insurance Services Ltd v O'Connor).

Take away point

Employers must be able to explain why taking a step (e.g. issuing a warning) is appropriate in the specific circumstances.

Part-time working could have been alternative to dismissal

In Ali v Torrisian and others (t/a Bedford Hill Family Practice), Dr Ali (“A”) was a GP on long-term sick leave due to an ongoing heart condition. He was disabled. A medical report confirmed that he could return to work albeit on a phased, part-time basis. He was later dismissed due to capability. The Employment Tribunal held that his dismissal was procedurally unfair because his employer failed to consider his return to work on a part-time basis. The Employment Appeal Tribunal also found that disability discrimination had occurred. In its view, A returning on a part-time basis should also have been considered as a less onerous way of achieving the employer’s legitimate aim of ensuring patient care. The needs of the business needed to be balanced against the discriminatory effect of the proposed dismissal of A.

Don’t Jump to Dismissal Unless You Have Good Grounds

Dismissal for multiple acts = reasonable response

In Mbubaegbu v Homerton University Hospital NHS Foundation Trust, Mr Mbubaegbu was summarily dismissed. The Employment Appeal Tribunal confirmed that his dismissal was fair. None of the acts leading to his dismissal amounted to gross misconduct but, as a series, they were sufficiently serious to undermine the relationship of mutual trust and confidence. Dismissal was within the range of reasonable responses.

Whilst this case is useful authority, employers should nonetheless be very cautious before deciding to dismiss with no prior warnings and where there is no definite act of gross misconduct.

Posting customer details online: dismissal was unfair

Mr Kurmajic (“K”) assisted a driver when his car became stuck on a ramp in a Sainsbury’s store car park. A colleague placed photos of the incident on his Facebook page with the comment “whoops” and K posted a comment identifying the driver, giving his name, age (86), address and car registration number. K was subsequently dismissed for gross misconduct. He had brought the Sainsbury’s brand into disrepute. K’s dismissal was deemed to be unfair by an Employment Tribunal since the disciplinary process was not approached with an open mind. Also: it was K’s first disciplinary offence; it was one short post; action was taken as soon as it came to light; and no other sanction was considered (Kurmajic v Sainsbury’s Supermarkets Ltd).

Additional Knowhow

Whistleblowing: a protected disclosure must contain information

In Kilraine v London Borough of Wandsworth, the Court of Appeal has provided helpful guidance on whistleblowing allegations. In a nutshell, it must contain relevant and key information. Words cannot be too general or devoid of factual content. Words can be boosted by context/surrounding communications. Overall, it is a matter for objective analysis as to whether an allegation is protected for the purposes of whistleblowing.

Philosophical belief discrimination

Ms Gray asserted an unusual discrimination claim based on a philosophical belief regarding copyright and ownership of creative works. The Employment Tribunal quite rightly held that such a belief is not capable of being protected under the Equality Act 2010 and her employer’s request to sign an agreement protecting its intellectual property was fair (Gray v Mulberry Company Design).

Gross misconduct dismissal: notice period doesn’t apply

In Lancaster & Duke v Wileman, Ms Wileman (“W”) was dismissed for gross misconduct two days before her two years’ continuous service. The employer was entitled to summarily dismiss without notice. W could not extend her effective date of termination by adding the statutory notice period she alleged was due.

Useful Toolkits

Areas which help create a supportive working environment 

• Home Office has updated its guidance for employers carrying out right to work checks
• Home Office has published details of settlement scheme for EU citizens
• Acas and HSE hot weather tips
• A toolkit has been published for organisations on the subject of alcohol, drugs and tobacco
• Public Health England and Business in the Community have released a domestic abuse toolkit

Changes to Come Into Play

Companies will have new reporting requirements to meet pursuant to the Companies (Miscellaneous Reporting) Regulations 2018. In general, the regulations will come into force on 1 January 2019. It introduces the need for some companies to report on employee and stakeholder engagement and provide information on the ratios between CEO and average staff pay.

If you need practical solutions on how to deal with any of the issues raised, please do contact us.