Recent Employment Law Decisions Shaping the Landscape

What is working time?

Case: Royal Menap v Tomlinson-Blake

Key take-away: ‘Sleep-in’ care workers will not be entitled to minimum wage for time spent sleeping rules Supreme Court.

The Supreme Court has ruled that care workers who need to sleep at their place of work in case they are needed are not entitled to the National Minimum Wage for their entire shift.

A ‘sleep-in’ shift is where a worker is entitled to sleep, but also act as a watchman in case their attention is needed. This may be where a resident becomes ill during the night and requires a care givers attention. There has recently been controversy as to whether the worker should be entitled to minimum wage for the hours that s/he is asleep and not caring for residents.

Recently the Supreme Court has ruled that workers will not be entitled to minimum wage for the time they are asleep and that they are only entitled to minimum wage for the hours that they are ‘working’. To give an example, a residential care home worker who is sleeping at their place of work will not be entitled to minimum wage for the time they spend in bed and asleep. However, when they are up and awake, and perhaps caring for a resident who has taken ill, they will then be paid the national minimum wage. The time they then spend awake and working will be their ‘time work’, and it is for these hours they spend awake and working that they will be paid.

The ruling marks a disappointment for workers, but the contrary for employers. In fact, some employers in the care sector had been paying ‘top-ups’ to prepare for the judgement going the other way.

When is self-employed not self-employed?

Case: Uber BV v Aslam and others [2021] UKSC 5

Key take-away: The written terms of the contract are not to be a definitive definition of the working relationship, but that the court should focus on the practical reality of the relationship between the individual and the employer.

In a landmark case for employment law, the Supreme Court hands down judgment that Uber drivers were ‘workers’ within the definition of the Employment Rights Act 1996, National Minimum Wage Act 1998 and Working Time Regulations 1998.

The gig-economy (short term contracts/freelance work as opposed to permanent contracts) offers unprecedented working flexibility, with Uber drivers being able to work where and when they chose. Until now, this working arrangement has been arguably one-sided, playing into the interests of the employer at the detriment of the gig-worker. 

Uber drivers were classed as ‘self-employed’ and were therefore not eligible for holiday and sick pay. The employer, however, benefited from an array of legal exemptions and a lack of requirements. 

The case of Uber BV v Aslam and others [2021] UKSC 5 extends the precedent of Autocleanz and followed the decision of the Court of Appeal, concluding that Uber drivers were workers. In Uber, the court by unanimous decision agreed that the written terms of the contract were not to be a definitive definition of the working relationship, but that the court should focus on the practical reality of the relationship between gig-worker and employer. 

This landmark case will “open the floodgates” for employment law claims. As gig-workers can now be eligible for holiday pay, sick pay, national minimum wage and rest breaks, it is undeniable that this judgment will open a new chapter for employment law and provide a remedy for gig-workers who are now being denied their legal rights. 

For the gig-economy in general, this historic ruling will be seen as the balancing of the scales and the creation of fairness in the system. Prior to this, the Government's Taylor Review’ had been shelved and the scales remained weighted on one side, favouring the employer. Now the situation is undoubtedly fairer, “armies of lawyers” cannot create contracts for the employer to hide behind; the courts will look beyond any carefully drafted contract and study the reality of the working relationship. The more control the employer has the less likely the individual is to be truly self-employed. We may now see increased litigation from others who have been waiting in the wings

How should the ‘common terms’ test in Equal pay cases be applied?

Case: Asda Stores Ltd v Brierley

Key take-away: The “common terms” test threshold under the Equality Act 2010, when considering comparators at a different establishments, is relatively low. Tribunals should not entertain a detailed, line by line comparison of terms.

Under the Equality Act 2010, men and women should receive equal pay for equal work. In this case female customer facing retail employees are claiming they should receive equal pay to predominantly male employees who work in distribution centres located away from the retail stores.

In order to bring a claim, the chosen comparator must be employed by the same (or an associated) employer and be employed at the same establishment; or at different establishments at which common terms apply.

In this case as no retail workers were employed at the distribution centres or distribution works in retail store therefore the court used a hypothetical test asking if the comparator’s would have been employed on broadly similar terms to those which they have at their own establishment if employed on the same site as the claimants.

Where an employee’s terms are tied to their location, so that they would acquire the other establishment’s terms on transfer, they are not common terms. But, if the comparators’ terms would be unaltered by the hypothetical relocation, then the common terms requirement is satisfied.

In this case the court found ‘common terms’, but there is still a way to go until the Asda retail workers reach the end of the aisle in this case.

Who is protected when subject to a detriment relating to health and safety?

Case: R (on the application of the IGWU) v Secretary of State for Work and Pensions

Key take-away: Limiting health and safety detriment protection to employees (and not workers) is a breach of the EU Health & Safety Framework Directive. Under The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021 protection will be extended to workers (and not just be available to employees) who are subject to detriments on or after 31 May 2021.

s44 Employment Rights Act 1996, currently provides that an employee can bring a tribunal claim if subjected to a detriment because they reasonably believed that being at work would place them (or someone else) in serious, imminent danger.

This is about to change as the protection will be extended to workers. We anticipate an increase in claims of this nature as workplaces begin to open up following the easing of lockdown restrictions.

For more information on ant of the above or to speak to our expert Employment Law team on any Employment and HR issues in your business contact us on 03333 208644 or email law@jcpsolicitors.co.uk.