Latest case – an end to the sleep-in crisis?

Having a number of clients in sectors such as social care and education means the issue of whether sleep-in shifts attract the National Minimum Wage has been an area I have been actively advising on for many years now. Several court decisions had come through where National Minimum Wage was held to apply in sleep-in situations, and many employers were facing claims for back pay. My article from last year summarises the background in this complex area.

Like many others, I had eagerly awaited the Court of Appeal’s judgment in the latest key case, in the hope that it would give some much-needed clarity.

The case was actually two joined together – Mencap v Tomlinson-Blake and Shannon v Rampersad, but I’ll refer to it as the Mencap case for ease, as the charity was the most high-profile party to the appeal.

In short, the Court of Appeal concluded that the employees in question had not been entitled to National Minimum Wage for each hour that they had worked a sleep-in shift. This was a surprising development, as it went against the previous cases and therefore what most people had expected.

The key distinction the Court considered in the Mencap case is between whether someone is working, or whether they are just available for work. Time spent being available for work doesn’t attract the National Minimum Wage. In some of the previous cases, it had been successfully argued that for care workers, particularly where their presence is a requirement (such as to meet staff/resident ratios) just them being on site means they are working. However, this approach was rejected by the Court of Appeal, which found that National Minimum Wage was only payable when someone is ‘actually working’ rather than they are asleep.

The difficulty is that we still do not have a clear definition of when something constitutes ‘actual work’, and the Court of Appeal’s judgment suggests that they weren’t quite sure about it themselves: “the distinctions are subtle, but they are in my view sufficient to justify a difference in outcome: it must be borne in mind that the decision which side of the line dividing “actual work” from “availability for work” a given case falls is factual in character, and in marginal cases different tribunals might well assess very similar facts differently.”

At first glance I have no doubt that many employers will be pleased with the decision, and I can understand that it may come as a reilef that the threat of back pay has been lifted. However, the decision goes against a considerable body of previous case law (albeit from the lower courts), and I would recommend caution. As this is a Court of Appeal decision it means that there is still one more appeal to be made (to the Supreme Court) and it seems highly likely that the case will need to be dealt with there in order to get a truly definitive decision. Mencap have also made a statement calling for the Government to legislate for proper funding and pay for those in the care sector.

Many employers have of course already altered their arrangements on the understanding that sleep-ins did attract National Minmum Wage, and it will be difficult for those to be reversed now, at least for existing members of staff. However, the special arrangements HMRC had put in place to assist employers in the care sector in dealing with claims for NMW back pay are expected to be revised.

There will almost certainly be more to come in the Mencap case, and as always, we’ll keep you updated via our future ebulletins.



Tales from the Tribunal

We take a look at two recent Employment Tribunal decisions and the practical points employers can take away from the decisions.
A Rawlinson v Catch 22 Multi Academies Trust Ltd (2018)

The first case involved an IT support manager, Mr Rawlinson, who resigned after being refused access to a company van and subsequently brought a claim for constructive dismissal. For a recap on the law relating to constructive dismissal, see our previous articles here and here.

Mr Rawlinson’s job involved transporting IT equipment between sites, for which he used his personal car. He discovered that his insurance did not cover this, as he was not running his own business. He asked for a company van, but his request was refused. Mr Rawlinson was signed off with work-related stress. He raised a grievance and then resigned. Mr Rawlinson’s grievance was eventually heard but was not upheld. He appealed unsuccessfully.

Mr Rawlinson had previously complained that he was on a 40 week per year contract but was effectively working full time, that there was a continued lack of appreciation, and that he was left out of planning, leaving him angry and frustrated and resulting in loss of motivation. The refusal of the van felt like a “hammer blow”.

The Employment Tribunal found that Mr Rawlinson’s employer’s behaviour was a “classic last straw”. Mr Rawlinson was awarded £10,000 compensation.

An incident which may in itself not amount to a fundamental breach can amount a “last straw” entitling the employee to resign. The Tribunal criticised Mr Rawlinson’s employer for ignoring his concerns for over 4 months despite his attempts to address his concerns, and concluded that by ignoring his concerns, the employer was in breach of duty.

It is important to address employee’s concerns in a timely way, or if that is not always possible, the employer should set out a timeframe for dealing with them, even if they may seem trivial.

Mr D Kurmajic v Sainsbury’s Supermarkets Ltd (2018)

In the second case, Mr Kurmajic, a Sainsbury’s employee, posted details (including the name, age, car registration number and address) of a driver whose car became stuck on a ramp in the supermarket’s car park. The post would later be described by the Employment Tribunal as an “ill-judged and insensitive attempt to draw attention to his fitness to drive”.

The store manager saw the Facebook post and felt that Mr Kurmajic had potentially committed gross misconduct, as his post was in breach of the social media policy. Another manager investigated and Mr Kurmajic was suspended.

Following a meeting with the store manager, Mr Kurmajic was dismissed for bringing the company into disrepute. Mr Kurmajic appealed. He argued that the social media policy referred to ‘customers’ but it wasn’t clear if the driver was a customer. Mr Kurmajic also said that he hadn’t read the social media policy and should have had training on it.

Mr Kurmajic’s internal appeal was unsuccessful and so he brought a claim in the Employment Tribunal. The Tribunal found that Mr Kurmajic’s Facebook post was potentially a fair reason for dismissal, but it found that there had been flaws in the process Sainsbury’s had followed.

The store manager was criticised for not giving more than superficial consideration to sanctions other than dismissal. Although he had completed a ‘decision making summary’ form which recorded that he had considered a final written warning and no further action as possible outcomes, he did not (as the form required) explain why.

The Tribunal found that Sainsbury’s could not have relied on damage to the brand as a reason for dismissal because no damage had been done – the driver had taken no action.

The store manager was further criticised for not making himself sufficiently familiar with the contents of the policies which it was alleging Mr Kurmajic had breached. The ET also stressed that:

“A reasonable employer would…be able to evidence a comprehensive training program and communication trail which… at the very least ensure[s] that it is made clear to employees that it is their responsibility to acquaint themselves with the content of any new policies…”

Mr Kurmajic’s claims for unfair dismissal and for his notice pay were successful.

The parties were given 28 days to decide between themselves how much compensation Mr Kurmajic should be awarded, however the Tribunal ruled that, as Mr Kurmajic was partly to blame for his dismissal, his compensation award would be reduced by 30%.

On the face of it, the Facebook post would seem to many sufficiently serious to amount to gross misconduct, and the Tribunal confirmed that is was a potentially fair reason for dismissal. However, despite Sainsbury’s having a social media policy, there was no evidence of the employees receiving any training on it.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.

When is a philosophical belief not a philosophical belief?

Under the Equality Act 2010, a person is protected against discrimination on the grounds of their religion or philosophical belief. When the protection was first introduced, it was on the grounds of a person’s religion or similar philosophical belief, but the word similar was dropped and is no longer in the legislation.

There has been a fair amount of case law over the last few years on the question of what amounts to a philosophical belief. The Employment Appeal Tribunal (EAT) in Grainger plc v Nicholson (2010) set some guidelines as to what amounts to a philosophical belief, and they have said that:

  • The belief must be genuinely held;
  • A belief is more than an opinion or viewpoint;
  • The belief must relate to a weighty and substantial aspect pf human life and behaviour;
  • The belief must have a sufficient level of cogency, seriousness and importance;
  • The belief must be worthy of respect in a democratic society;
  • The belief must have a similar status to a religion;
  • The belief need not be shared by others; and
  • The belief may or may not be based on science.

The EAT did also say that not all factors needed to be present in all cases.

Whilst it is clear that the EAT in setting out these guidelines was trying to exclude frivolous cases where one or more people held some fairly unusual views, but it does not take much imagination to think of scenarios which may or may not fall into the protection offered by the legislation.

In the recent case of Gray v Mulberry (2018), Mrs Gray brought a claim of discrimination on the grounds of a philosophical belief after she was dismissed by Mulberry. Mrs Gray refused to sign a contract of employment as it contained a provision that all Intellectual Property rights created by her would belong to the company. She was writing a novel and was not happy with the clause. Mulberry agreed to specifically exclude the novel, but she still refused to sign and was ultimately dismissed. She claimed that her belief in the sanctity of copyright law was a philosophical belief and thus was protected under the Equality Act. The Employment Tribunal held that this lacked sufficient cogency to amount to a protected belief. Mrs Gray appealed to the EAT.

The EAT upheld the Tribunal’s decision. They found that the Tribunal was within its rights to reach the conclusion which it had. Significantly, they also held that there could be no indirect discrimination because, so far as they were aware from the evidence, Mrs Gray was the only person holding that belief and therefore there could not be a disadvantaged group – a fundamental requirement of indirect discrimination.

Mrs Gray has been given leave to appeal to the Court of Appeal, and if the case does go to appeal, we will let you know the outcome.

If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).

Please note that this update is not intended to be exhaustive or be a substitute for legal advice. The application of the law in this area will often depend upon the specific facts and you are advised to seek specific advice on any given scenario.


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