February 2020

Royal Mencap Society v Tomlinson - Blake
This case, colloquially known as the “sleep-in” case, addresses whether employees who sleep at the homes of the people they are supporting, in order to carry out duties if required, are working for the purposes of calculating the National Minimum Wage for the totality of their shift. The Court of Appeal held that employees were only entitled to be paid when they were awake and carrying out those duties. The Supreme Court’s decision could have huge implications for the health and social care sector, a sector that is still reeling from the effects of the Covid-19 pandemic. The cost of paying employees for all sleep-in hours may prove too costly for some providers in the sector to survive.

As you may know, Anthony Collins Solicitors represented Care England who were granted the right to be part of this case back in 2018. I have worked on this case since we were first instructed and attended the Supreme Court hearing; here is the briefing I wrote following the hearing. We will provide updates and practical steps to be taken as soon as any judgement is forthcoming.  

Cases to be heard in June 2021

Chief Constable of the Police Service of Northern Ireland and another v Agnew and others
This issue relates to breaks in employment service and their effect on unlawful deduction from wages; this is especially key (and was in this case) to backdated unpaid holiday pay. The Court of Appeal Northern Ireland held that a three-month break in employment did not interrupt a series of unlawful deductions. For Northern Ireland, this case significantly increased the potential cost of historical pay claims.  In Great Britain, the Deduction from Wages (Limitation) Regulations 2014 limits back pay for claims bought after 1 July 2015 to two years. 

The Northern Irish Court of Appeal’s decision was not binding on British courts but if their decision is upheld by the Supreme Court in the summer of 2021 then it will become binding. Whilst British employers are protected by the limitation regulations, it is advisable to ensure that all holiday pay is up to date, especially in zero-hours contracts where there may be sizeable breaks in work.

Flowers and others v East of England Ambulance Trust
This case, again relating to holiday pay, debates whether holiday pay under the Working Time Directive must include voluntary overtime. The Court of Appeal dismissed the Trust’s appeal and confirmed that holiday pay must include regular voluntary overtime and that it was for the tribunals to determine, on a case by case basis, what constituted a regular and settled pattern of overtime. The issue for employers going forward, if the Supreme Court upholds the Court of Appeal’s decision, is what a “regular and settled” pattern looks like in practice.

Case to be heard in November 2021

Last in the trio of holiday cases is;

Harpur Trust v Brazel
This case caused rather a stir when the Court of Appeal published its decision back in August 2019. You may remember the case; a part-year music teacher at a school claimed that she was entitled to the same paid statutory holiday as her colleagues who worked all year round. The Trust had applied the 12.07% accrual method for calculating holiday entitlement up to that point. 

Lord Justice Underhill was careful to point out in his judgement that this only applied to part-year workers and not part-time workers and where there was a permanent contract in place. He seemed happy to accept that it could, in some cases, lead to bizarre anomalies. The examples used noted that a cricket coach or exam invigilator working for a month each year but employed on a permanent contract, would be entitled to 5.6 weeks’ paid holiday, in line with their colleagues who worked all year. 

The case has ramifications for employers who use permanent zero-hours contracts; using the 12.07% accrual method may no longer be lawful and employees may have an unlawful deduction of wages claims (limited to the last two years).  

The employment and pensions team have published the following in relation to this decision;

  • A toolkit to assist employers to assess their liability following this judgement; and
  • An ebriefing providing useful guidance and action points.
For more information

For further information in relation to any of the above, please contact your relevant ACS contact or Matt Wort.