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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.
Latest Brief - Week Ending 2 October 2015
Every little helps……
This story is not about Tesco, but rather how the Government’s coffers have been increased. UK Visas and Immigration has published the number of penalty notices, illegal workers and value of fines for the period 1 January to 31 March 2015. In the Country as a whole, £8.9 million of penalties have been issued for 943 illegal workers. In the Midlands and East of England region alone, £1.6 million of penalties have been issued relating to 197 illegal workers.
This must be the tip of the iceberg.
National Minimum Wage (NMW) increases
The NMW has increased minimum hourly rates from 1 October 2015 as follows:
• The standard adult rate (workers aged 21 and over) is £6.70.
• The development rate (workers aged between 18 and 20) is £5.30.
• The young workers rate (workers aged under 18 but above the compulsory school age who are not apprentices) is £3.87.
• The rate for apprentices is £3.30.
Further information can be obtained from https://www.gov.uk/national-minimum-wage-rates
An Employment Tribunal has handed down its Judgment in respect of a claim brought by a former domestic worker and nanny who claimed that she had not been paid the National Minimum Wage whilst employed, that her employer failed to allow her to have rest breaks, or annual leave and that she had been subjected to discrimination because of her race/ religion (including caste discrimination). The claimant was successful in all of her claims. The Judgment includes a calculation of the shortfall in payment of the national minimum wage in the period that the claimant was employed, in the sum of £183,773.53! However, the remedy for all her other claims is to be decided in a hearing scheduled to take place on 5 and 6 November 2015.
Tirkey v Chandok and another ET/3400174/13