On 16th July 2018, in Royal Mencap Society v Tomlinson-Blake, the England and Wales Court of Appeal made the distinction between being ‘available to work’, (as per section 15 (1)/32 of the National Minimum Wage (NMW) Regulations), and ‘actually working’ (as per section 15 (1A)/32). It ruled that NMW was only payable in respect of the latter.
Sleep-in shifts and NMW
This is a very significant ruling for care agencies, particularly in light of the current Social Care Compliance Scheme (SCCS) which is operated with HMRC. The scheme gives employers up to a year to identify what they owe to workers so that pay for sleep-in shifts is compliant with NMW.
Despite this revelation, employers are not automatically entitled to reduce pay in line with the ruling. Any contractual terms or long-standing custom and practices which are in place and are more beneficial to the employee, are highly likely to take precedence. This is because a unilateral change to a fundamental term of employment, can give rise to a breach of contract claim and even a constructive dismissal claim.
Further HR guidance
Contact HR Solutions for guidance on how to safely approach a change to terms and conditions in relation to pay.
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