Employment Highlights July 2018

This month, the Court of Appeal held that carers working sleep-in shifts are only entitled to national minimum wage when they are required to be awake for the purposes of working, not when they are asleep but on call. The court considered the sleep-in exception in regulation 32 of the National Minimum Wage Regulations 2015, holding that it applied to situations where “the essence of the arrangement is that the worker is expected to sleep”. Since the judgment, HMRC has reportedly told employers in the social care sector to suspend their self-assessment of potential underpayments, pending further advice. In a different case, the Court of Appeal upheld an EAT decision that there was no dismissal of an employee following a successful appeal of a decision to dismiss. The fact that only one of the two disciplinary actions that had led to the initial dismissal was addressed in the appeal did not influence the court’s decision.

Meanwhile, the EAT ruled that the dismissal of an employee on long-term sick leave could not be objectively justified under section 15(1)(b) of the Equality Act 2010. It held that dismissal was not a proportionate means of achieving a legitimate aim as the tribunal should have considered part-time working as a less discriminatory option. In a separate case about NHS workers, the EAT clarified that both non-guaranteed and voluntary overtime should be accounted for when calculating holiday pay. In another case, the EAT upheld an employment tribunal’s decision that a belief in copyright of an employee’s own creative work was not sufficiently cohesive so as to constitute a philosophical belief under the Equality Act 2010.

Advocate General Wahl has given an opinion on the worker status of foster parents, stating they do not fall under this label for the purposes of the Working Time Directive (2003/88/EC) as they are not in a subordinate relationship, or performing an economic activity for an employer.

In other news, the Women and Equalities Committee has published its report on sexual harassment in the workplace, setting out a five-point plan to help government, regulators, and employers tackle the issue. The Government Equalities Office has published the response to its consultation on caste discrimination. The response concludes that this area of law will be left to develop naturally through case law, rather than through legislation. Lastly, the government has launched an LGBT action plan following a national survey. It commits to developing training packages to help employers deal with discrimination in the workplace, and the inclusion of LGBT issues in Acas and GEO sexual harassment guidance.

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