the latest briefs.....
Check here for the very latest news on all employment issues…
Latest Brief - Week Ending 23 October 2015
Are we back to where we started in whistleblowing cases?
It used to be possible for employees to raise concerns about their own terms and conditions of employment and then rely upon this as a protected disclosure to bring a claim for whistleblowing. However, we all thought that this type of claim had been closed off by virtue of the amendments to the whistleblowing legislation which meant that in order to gain protection, the disclosures had to be in the public interest.
There have been 2 recent cases which seem to open up these types of claim once again. The first case, Chesterton Global Ltd v Nurmohamed UKEAT/0335/14 considered the meaning of "public interest" in the amended legislation and found that it was not necessary for the disclosure to be of interest to the public as a whole, as it was inevitable that only a section of the public would be directly affected by any such disclosure. In this case, 100 senior managers were sufficient to satisfy the public interest test.
The later case of Underwood v Wincanton plc UKEAT/0163/15 has gone even further to hold that a dispute between an employer and a group of only four employees, was capable of being a protected disclosure!
Chersterton is being appealed to the Court of Appeal but won’t be heard until October next year. It is therefore extremely likely that we will have more cases on this issue. Watch this space……
Latest Brief - Week Ending 9 October 2015
Sleeping time and National Minimum Wage (NMW)
We have had another instalment of the tricky question as to whether an employee who is able to sleep on his employer’s premises is entitled to be paid the NMW for each hour he sleeps/ is on the premises.
In Shannon v Mr J Rampersad & Mrs P Rampersad T/A Clifton House Residential Home, the Employment Appeal Tribunal considered that Mr Shannon was not entitled to be paid the NMW for every hour he slept.
Mr Shannon accepted an offer to be employed as an “on-call night care assistant” where he was provided with accommodation, namely a top floor flat located at the top of the residential home. He was required to be in the flat from 10pm until 7am but was able to sleep during those hours. However, he was required to respond to any request for assistance by the night care worker on duty at the home. In return, the Claimant was provided with accommodation in the flat with all utilities provided free of charge, together with a payment of £50 per week, rising eventually to £90 per week.
In practice, he was very rarely asked to assist the night care worker. When Mr Shannon’s employment was terminated, he brought a claim for holiday pay, unfair dismissal and for the NMW for every hour he spent in the flat from 10pm til 7am (totalling some £239,490)! I am only interested in the NMW element of the case.
The Employment Tribunal held that he was not entitled to the NMW for all of his hours spent in the flat between 10pm and 7am, and this was upheld by the Employment Appeal Tribunal. As his home was at the place of work, he was covered by an exception in the NMW legislation which meant that only those times when he was awake for the purpose of working counted as working hours and his flat-rate pay (plus accommodation) meant that he was at all times in receipt of the NMW. Therefore, he was only entitled to be paid for the hours he was actually called upon to assist. As he was paid a flat rate, and as he was rarely called upon, this did not result in any additional payment to Mr Shannon.
The Judge takes a nice amble through the relevant cases on this tricky area before coming to its decision.