Hello and welcome to our monthly newsletter. It’s been an interesting month in employment law, with two decisions from the Supreme Court. The first found that Uber drivers are workers and are therefore entitled to holiday pay and the national minimum wage. The second (covered below) concerns the national minimum wage in the context of night-shift workers. We’ve also got some bits covering face mask dismissals and TikTok videos in work uniform.
Supreme Court Clarify National Minimum Wage Point
Royal Mencap Society v Tomlinson- Blake & Shannon v Rampersad and another (T/A Clifton House Residential Home)
The first case this month looks at the National Minimum Wage (NMW). Specifically, it considers whether night-shift workers who are allowed to sleep on shift are entitled to the NMW.
The Supreme Court heard two separate cases together, as they concerned the same point of law. Both Claimants were carers who worked night-shifts and were permitted to sleep whilst on shift, with the expectation being that if there was an emergency, they would wake up and assist the carer on duty. Both Claimants were rarely disturbed in their sleep, and both brought claims for backdated pay, heaving received substantially less than the NMW for the work they had carried out.
The relevant statute is the National Minimum Wage Act 1998. This provides that there shall be a National Minimum Wage, to be determined by government each year, following a review from the Low Pay Commission (a statutory body set up by the Act).
Various regulations govern the National Minimum Wage Act 1998. The ones relevant to this case are the 1999 and 2015 regulations. These provide that a worker who is “on call” shall be entitled to the NMW. There are two exceptions: If the worker is “on call” from his own home (for example answering telephone calls), or is allowed to sleep during his shift, he shall not be entitled to the NMW.
This may suggest that the present case is easily answered: both Claimants were “on call” but were permitted to sleep during their shift, meaning they were not entitled to the NMW. But some lawyers (not PJHLaw of course) like to make things difficult, and a case from 2002 precluded simplicity. In British Nursing Association v Inland Revenue , the Court of Appeal decided that nurses who worked a night-shift from home, occasionally answering calls when required, were “working” for the purposes of the National Minimum Wage Act 1998 (not “on call”) and were therefore entitled to the NMW for the duration of their shift.
The Claimants in this case argued that as they were allowing the Respondents to fulfil a statutory duty (a regulatory duty that obligated them to have more than one worker on shift at any given time), they were carrying out a valuable working function and were therefore working (and so entitled to the NMW for the duration of their shift).
The Supreme Court dismissed both appeals. In doing so, they said that the British Nursing case should no longer be regarded as authoritative, because “it would not be a natural use of language, in a context which distinguishes between actually working and being available for work, to describe someone as working when she is positively expected to be asleep” (as the nurses in the case were). This dismantled the Claimants’ arguments and ultimately gave the Supreme Court no other option than to fall back on the black letter wording of the regulations, which provides that if a worker is “on call” and they are allowed to sleep during this time, they are not entitled to the NMW.
This is an important decision. It is a definitive statement on the matter (being from the Supreme Court) and the position will only change once parliament legislates to that effect. For now, the care sector can breathe a sigh of relief, as it will not have to pay night-shift sleep-in workers the NMW for their entire shift (only when they are actually up and working as opposed to sleeping).
Dismissal for not Wearing a Face Mask was Fair
Kubilius v Kent Foods Ltd
The first of what is sure to be a perplexing raft of litigation about face masks has landed.
Mr. Kubilius was a lorry driver for Kent Foods (KF). KF’s biggest customer was Tate & Lyle (accounting for roughly 90% of its work). KF’s employee handbook stated that all customer requests regarding PPE must be complied with.
In May 2020, Tate & Lyle (TL) decided to make face masks mandatory at one of its sites, and all visitors were issued with one on arrival. The Claimant refused to wear one whilst inside his lorry but was perfectly happy to wear one outside.
Management reportedly became concerned that he may spread the virus and therefore banned him from the site. This prompted investigation by the Respondent, concluding that the Claimant was in breach of its PPE policy and proper interaction with clients/ suppliers.
The Claimant was dismissed and bought a claim for unfair dismissal. The ET found the dismissal fair. They said that the dismissal was due to conduct (failure to wear a mask on a client’s premises, amounting to a breach of the employee handbook), and that it was in the range of reasonable responses to dismiss.
Although this is an interesting case, it is important not to take it as gospel. Firstly, TL accounted for a drastic proportion of KF’s business and so any adverse employee relations between the two could spell disaster for the Respondent. No doubt this played on the ET’s mind in finding that a seemingly harsh dismissal was justified. Secondly, in May, the threat of Covid-19 was very much fresh in people’s minds. Less was known about the virus, its virulence, and its threat to the general population. One could argue that employers would be less concerned now, especially with what we know about airborne transmission. That could however be turned on its head, as the use of masks (especially in public settings) is more widespread. Finally, KF’s policy specifically noting PPE is noteworthy. This is an uncommon policy and no doubt played into their hands.
Lighter Side of The News
Man Mistaken for Manager in Work Group Chat Fires All Employees
And now for the lighter side of the news, which won’t be difficult as this newsletter has been about the Working Time Regs and facemask dismissals.
First up, be careful who you invite to your work Whatsapp group. Aaron Ledster, 25, found himself added to a group of people who thought he was their manager. He cottoned on to this quickly and thought he’d make the most of it.
He initially asked, “who are you?” and “why am I in this group?”, only for its members to presume it was their witty manager trying to wind them up. Aaron then proceeded to ask how everyone’s wife and kids were and scheduled in a round of drinks for the team.
When one employee replied, “I would love to join you for a drink!”, Aaron replied “fu** off, nobody asked you”. He then told the remainder of the team that they were all fired for being “sh*t”.
One of the employees video-called him to dispel the confusion. He answered, and the two exchanged vacant glances before the employee cracked and apologised for getting the wrong number. Aaron replied that he had got the right number and that he had just been sacked.
If any of the employees are reading this, we are ready to take instructions.
Lighter Side of the News
Co-Op Worker Fired for Shooting TikTok Videos in Work Uniform
For those unable to keep track of whatever app is currently in vogue among the youth, TikTok, a Chinese social media app that allows users to dance along to music, is currently a favourite.
Lucy Skinner worked for Co-Op in Cumbria. She is somewhat of a TikTok tycoon, and regularly posts on the app. Apparently, Co-Op took issue with her wearing her work uniform whilst doing so.
A link to her page is here.
Lucy was not pleased and is reported to have said “The worst thing I did is call customers ‘Karens’ but it was a joke and I see it all the time on TikTok, other supermarket staff in Tesco or even NHS staff do it, so I thought I wasn’t doing anything wrong.”
She also posted a video accusing managers of double standards when dealing with difficult customers. She admits that she might have overstepped the mark here, and said “I can see where they were coming from with that one, but it was only a joke”.
Arguably heavy handed from Co-Op. Today’s generation are used to putting just about anything on social media. This story reminded us of a Tesco employee who was shunted for posting a decidedly more risqué video on social media.