Cases to watch in 2020

Do sleep-in shifts count as working time for the purposes of paying the minimum wage?
In Royal Mencap Society vs Tomlinson-Blake; Shannon vs Rampersad and another (t/a Clifton House Residential Home) [2018] IRLR 932 CA, the Court of Appeal heard two appeals together because they concern the same issue. The issue for the Court of Appeal was whether or not employees who sleep in and carry out duties only if woken up are entitled to the national minimum wage only when they are awake and carrying out relevant duties or for the whole time that they are asleep on the premises.

The Court of Appeal held that while asleep during sleep-in shifts the national minimum wage does not have to be paid. In other words, a shift payment or flat rate would suffice.

The Supreme Court granted Ms Tomlinson-Blake, supported by Unison, leave to appeal the Court of Appeal’s decision to the Supreme Court. The Supreme Court is expected to hear the appeal in February 2020.

Calculating holiday pay for term-time (or part-year) workers
In Harpur Trust v Brazel [2019] IRLR 1012 CA, the Court of Appeal held that holiday pay for ‘part-year workers’ should not be calculated on a pro-rata basis, but by calculating average weekly remuneration over the previous 12 worked weeks. The Court of Appeal acknowledged that calculating holiday pay without a pro-rata reduction for part-year workers might produce perceived inequities, but the court did not consider it to be unfair.

On 23 October 2019, the Supreme Court granted Harpur Trust leave to appeal the Court of Appeal’s decision. A date has yet to be set for this, but definitely one to watch for any employer who employs term-time only workers or any other part-year staff.

Employment status – when is someone self-employed or a ‘worker’?
In this high-profile case, Uber drivers regarded by the company as self-employed claimed that they are, in fact, workers.

The original employment tribunal decision held that the Uber drivers are workers which means that they are entitled to receive the national minimum wage and paid annual leave amongst other benefits.

Uber appealed to the Employment Appeal Tribunal. In Uber BV and others vs Aslam and others [2018] IRLR 97 EAT, the EAT agreed with the tribunal that Uber drivers are workers.

Uber appealed and the Court of Appeal dismissed the appeal in Uber BV and others v Aslam and others [2019] IRLR 257 CA.

However, the Court of Appeal has given Uber permission to appeal its decision to the Supreme Court. The case is expected to be heard in July 2020 and the outcome is likely to clarify employment status once and for all.