The monthly round-up from the Anthony Collins Solicitors charities team.
Unison have lodged an application for permission to appeal to the Supreme Court in the Mencap case.
We expect that it will take at least 8 weeks for the Supreme Court to decide whether to grant permission to appeal. If permission is granted, the Supreme Court would then list the case for a hearing, which we would expect would be in the latter part of 2019. We will provide a further update on timings once further information is available. Our expectation is that the Supreme Court will give permission for the appeal to proceed to be considered at a hearing.
The grounds for appeal highlight the significance of the issue for the sector and for workers. They are technical in nature but are broadly based on argument that:
- The previous approach to the law was correct. The exemption regarding sleeping should only apply if someone is not already working because of the nature of the restrictions on them.
- The Low Pay Commission recommendations have been misunderstood. It is alleged they recommended time spent available for work should be paid at NMW rates.
- The Court of Appeal contradicted themselves by saying that the sleep-in exception was intended to deal “comprehensively” with the position of sleep-in workers, and then accepting the conclusion in the Scottbridge case which the Court of Appeal felt turned on its particular facts.
- The Court of Appeal were wrong to conclude that Walton (the case which upheld the use of Daily Average Agreements in a live in care context) was authority for the proposition that a worker on call who is permitted to sleep is not working.
- The Court of Appeal shouldn’t have changed the Tribunal’s original decision on its facts unless they concluded the original decision was perverse.
The Court of Appeal decision represents the current interpretation of the law, but this appeal means it cannot yet be taken to be the final position. Providers will be keeping a close eye on further developments to help decide future pay strategy for sleep-ins. We expect HMRC will be providing an update in respect of the SCCS scheme by 17 August and we will provide a further update once we have considered the HMRC update.
For more information
In this ebriefing, we identify what we see as the key messages arising from recent prosecutions in the care and housing sectors.
A recent High Court case on costs could prove essential reading for clients who have cases in the magistrates' courts.
The employment and pensions team offer practical advice on whistleblowing.
Partners, David Alcock and Sarah Patrice, have been involved in reviewing the new Code of Governance for community-led housing, published on 21 May 2021 by the Confederation for Coop Housing.
Following the eviction ban being lifted on 31 May 2021 and further to our previous ebriefing, the new notice of seeking possession forms are now available on the Government website as Word versions.
The European Court of Justice's standpoint on the Wiener Wohnen landowning developer case, and how the level of influence over the work did not amount to a decisive influence.
The Law Commission's Technical Issues in Charity Law report revealed that many charities struggle with a range of technical issue in the law.
The Law Commission recommended four key changes to the law in respect of mergers and the incorporation of charities which we have detailed in this ebriefing.
Over the last few weeks, we have published individual ebriefings on some of the key changes to be implemented following the Government’s response to the Law Commission’s report.
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