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Worker wins case for National Minimum Wage during sleep-in shift
An EAT has held that a Mencap worker is entitled to the National Minimum Wage for the time spent on a sleep-in shift. Although the EAT says each case will need to be decided on its facts, the description of the worker’s duties suggests the decision will apply in many cases. The EAT, agreeing with the ET decision says -
‘... the Tribunal observed that the fact that the Claimant may have had little or nothing to do during sleep-in shifts and that she was entitled to sleep did not detract from the fact that she was required to be there and to deal with such situations as might require her attention or intervention. Further, it was not sufficient that the Claimant was on-call to attend if required, she had to be there both for the proper performance of her duties and to enable the Respondent to comply with the legal obligation placed upon it, to provide an appropriate level of care for the service users.’(paragraph 52)
http://employmentappeals.decisions.tribunals.gov.uk//Public/Upload/16_014302440290rjfhJWDM.doc
The Guardian has reported Mencap’s fears of financial crisis if forced to pay the NMW for sleep-in shifts.
and the actual decision
http://www.bailii.org/uk/cases/UKEAT/2017/0290_16_2104.html
but worth reading the entire thing, and compare/contrast the mencap case with the other two heard at the same time (and, indeed, some of the cases cited)
not totally simple and may turn on the specific facts…. indeed, probably does.
whether MENCAP will appeal is another matter, of course, but i imagine both sides are thinking about appealing since it’s going to be an important issue on which many people will want clarity
New House of Commons Library briefing summarises recent developments relating to payment of the national minimum wage for sleep-in care duties.
Just come across article in the Mirror which says Court of Appeal has ruled against this now.
Carers who have to sleep at work in case they are needed overnight will NOT be paid minimum wage after a landmark court ruling.
The Court of Appeal overturned the policy after care firms warned it could cost billions - but workers’ unions are now furious.
Three leading judges today said carers were only entitled to minimum wage when they were required to be awake for work.
Judgment http://www.bailii.org/ew/cases/EWCA/Civ/2018/1641.html
Including the important reminder:
The job of the Court is not to decide what the law ought to be in this area but what it is.
Reaction to the judgment from Mencap -
https://www.mencap.org.uk/advice-and-support/stopsleepincrisis
... and Unison
https://www.unison.org.uk/news/press-release/2018/07/sleep-shifts-judgment-huge-mistake/
... and the rightsnet summary of the judgment also now up