FEATURE
Andrew Rayment
asleep (or time when they were permitted to sleep) should not be included.
The judgement was confined to sleep-in workers, who the court described as being “expected to sleep” – the principal purpose and objective of the arrangement is that the worker will sleep but respond as needed.
The judgement is a massive relief for those in the care sector. Thousands of claims have been stayed pending the judgement in Mencap and several care providers faced financial ruin if all the hours of sleep-in shiſts needed to be included in calculations. Claims for underpayment of the NMW can cover up to six years’ worth of arrears, so it was not uncommon for individual claimants to be claiming hundreds of thousands of pounds each in compensation. In addition, there was the threat of interest and potentially fines and penalties from HMRC.
It’s not all rosy though, with the impact of Brexit and changes to immigration laws, the industry may find it harder than ever to recruit in light of this news. The sector has traditionally been heavily reliant on a European workforce and, with EEA nationals now being subject to the UK’s new points-based immigration system, employers are likely to face increased administration, processing times and costs when attempting to recruit skilled workers from the EEA or those via the “fast- track” Health and Social Care Visa. The current recruitment crisis could therefore get worse before it gets better. There will equally be many extremely disappointed care workers and employers in this sector will no doubt faced renewed challenges to motivate and retain staff who are already weary because of the pandemic.
The judgement also raises issues for employers who previously increased rates of pay for staff based on the earlier judgements in this litigation, which were in favour of the claimants. Any changes to terms and conditions would require the consent of employees, and any unilateral changes could
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land employers back in the Employment Tribunal for claims for unlawful deductions from wages and/or constructive dismissal. Several care providers have already said that they intend to continue paying the higher rates notwithstanding the judgement, which will no doubt be welcomed by staff.
In addition, the judgement will not change the analysis for those employed to perform “waking night” shiſts. As such workers are expected to be awake during the shiſt, they are likely to still qualify for all hours of the shiſt to be considered for the purposes of the NMW.
It is worth bearing in mind that, despite the largely favourable judgement for the care sector, the decision does create potential for further conflict and litigation there, as well as in healthcare and other areas.
Although the judgment is confined to sleep-in workers, concerns are already being raised that it could generate substantial litigation about the “home-working” exception, particularly in the current climate.
The debate about the correct analysis of sleep-in shiſts has been raging for 20 years. It stems from a case in which nurses manned a 24-hour call service from home and were permitted to sleep between calls. In that case, the Court of Appeal held that the nurses were in fact working throughout the whole shiſt rather than being “available for work” and therefore that the “sleep” and “at home” exceptions did not apply.
The Supreme Court’s judgement in Mencap stated that this approach was no longer good law. This could make it hard for some home workers, for example, those manning calls, to argue that they are working throughout the duration of shiſts rather than being available for work between calls. It remains to be seen whether this shiſt could prompt employers to re- examine pay structures and/or result in workers being keen to get back into the workplace to remove any doubt.
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