Where a worker is required to sleep-over within the workplace, but may only be woken if needed to carry out a specific duty, the worker is only entitled to the National Minimum Wage (NMW) for the time they are required to be awake, for the purpose of working, they are not entitled to the NMW for the whole shift.

In the case of Royal Mencap Society v Tomlinson-Blake, Ms Tomlinson-Blake was a carer for two adults in their own home.  As well as working day shifts, she was required to carry out a sleep-over shift between 10pm and 7am for which she received a payment of £29.05.  During the sleep-over shift, she was not required to carry out any duties but was required to remain at the clients’ house and keep an ear out in case she was needed.  Ms Tomlinson-Blake had her own bedroom, together with a shared bathroom.

Ms Tomlinson-Blake claimed that she was entitled to the NMW for the whole sleep-over shift.  The Employment Tribunal and Employment Appeal Tribunal (EAT) upheld her claim, ruling that she was working for the whole of the shift.

Mencap appealed to the Court of Appeal who upheld the appeal.  The Employment Tribunal and EAT should have concluded that she was available for work, rather than working, and that the sleep-over exception in the National Minimum Wage Regulations 2015 applied – she slept by arrangement at her place of work and was provided with suitable facilities for doing so.  Therefore, only the hours when she was required to be awake for the purposes of working counted for NMW purposes.

This is an important decision for employers in the care sector who engage workers to carry out sleep-over shifts at work.  The Court of Appeal reviewed and, in effect, overturned a significant number of previous authorities on the treatment of sleep-over shifts for NMW purposes.  Workers who carry out sleep-over shifts at work are only entitled to the NMW Wage for those hours where they are awake and working.

It is important to note, that the judgment only deals with the situation where a worker is expected to sleep all or most of the shift but should be available if required.  It makes it clear that it is not dealing with cases where a worker may be permitted to sleep between tasks.  For example, a night security guard who is responsible for patrolling premises from time to time throughout the night but who is permitted to sleep for short periods between patrols and is given a mattress to sleep on in an office, would be regarded as working throughout his shift and entitled to the NMW for the whole shift.

For further advice and support on what counts as working time and NMW contact us at Solve.


In the case of Ali v Torrosian and others (t/a Bedford Hill Family Practice), Dr Ali was on long term sick absence following a heart attack, which was accepted as a disability.  A medical report stated that it was unlikely he would be able to return to work on a full-time basis but that he could return on a phased, part-time basis.  Dr Ali was then signed off work for six weeks due to a shoulder injury.  On the expiry of that certificate his employer dismissed him on grounds of capability.

Dr Ali claimed that he was unfairly dismissed and discriminated against due to his disability.  The Employment Tribunal (ET) found that his dismissal was unfair due to this employer’s failure to consider a return to work on a part-time basis, but rejected his discrimination claim, finding that his dismissal was justified by the employer’s legitimate aim of ensuring that it provided the best possible care to patients.

Dr Ali appealed to the Employment Appeal Tribunal (EAT) in relation to the rejection of his disability discrimination claim.

The EAT ruled that the employment tribunal had been wrong to find that dismissal was justified, without considering whether part-time working was a less discriminatory means of the employer achieving its legitimate aim.  Having found that the employer’s failure to consider part-time working meant his dismissal was unfair, it should have taken this factor into account when considering whether dismissal was proportionate.  Although the tests for unfair dismissal and disability discrimination are different, the factors that are relevant for determination are likely to be substantially the same.

At the date of dismissal, Dr Ali’s last sick certificate had ended and the medical advice indicated that he should be able to return on a part-time basis.  The ET should have considered whether the employer’s failure to consider part-time working as an alternative to dismissal meant that his dismissal was not objectively justified.

The EAT submitted the case to the same tribunal to reconsider this issue.

For advice and support on absence and discrimination, contact us at Solve.

An employment tribunal has made an award of £1,000 against Marks and Spencer after a delay in providing a disabled shop worker with a £3 lift key to allow him to reach the toilets more easily.

In Mitchell v Marks and Spencer plc, the employment tribunal held that the employer breached its duty under the Equality Act 2010 to make reasonable adjustments for disabled workers.

Due to a health condition Mr Mitchell required an operation.  His condition was classed as a disability under the Equality Act.  Both before and after the operation Mr Mitchell anticipated that he would require frequent trips to the toilet on the second-floor and would need access to a customer lift through the use of a key.

Without the key to the customer lift, Mr Mitchell had to access the second-floor staff toilets using the goods lift, the stairs, or a combination of the escalator and the stairs.

Mr Mitchell raised this issue with various managers before his operation.  After his operation he again raised his request and was finally issued with a key to the customer lift 10 days after his operation.

Mr Mitchell claimed disability discrimination in the employment tribunal, which upheld his claim by a majority.  His claim was successful as the tribunal accepted that using the customer lift rather than the goods lift did make a difference for Mr Mitchell, in terms of “speed, reliability and convenience”.

The tribunal awarded £1,000 to Mr Mitchell for injury to feelings.

The tribunal was of the opinion that there could be little excuse or explanation for failing to provide Mr Mitchell with a key for 10 days when there were keys available and when the cost of cutting a further key was agreed to be just £3.

This case highlights the importance of avoiding delays when making reasonable adjustments in cases of disability especially when those adjustments are simple and easily made.

Employers must make reasonable adjustments to make sure workers with disabilities, or physical or mental health conditions, aren’t substantially disadvantaged when doing their jobs.  These adjustments depend on the condition and the individual, they might include:

  • changing the recruitment process so a candidate can be considered for a job
  • doing things another way, such as allowing someone with social anxiety disorder to have their own desk instead of hot-desking
  • making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for a deaf person
  • letting a disabled person work somewhere else, such as on the ground floor for a wheelchair user
  • changing their equipment, for instance providing a special keyboard if they have arthritis
  • allowing employees who become disabled to make a phased return to work, including flexible hours or part-time working
  • offering employees training opportunities, recreation and refreshment facilities

For further advice and support on disability in the work place and making reasonable adjustments contact us at Solve.

Should Staff Get Paid For Snow Days

Should Staff Get Paid For Snow Days

The so called ‘Beast from the East’ certainly made its presence known last week causing major disruption across the UK.  Some are estimating that the cost to the Scottish economy is at least £300M.   The red travel warning and school closures meant that many employees were unable to make it into their work.  So how does this affect pay?

Whilst employers have a duty of care to employees that doesn’t make a blanket policy that ‘we will just pay you for however long the bad weather lasts’.  Essentially it will be down to the discretion of individual companies if workers are paid for snow days.

Importantly, if an employer is insisting staff go home and are not permitting employees to work because of the weather warning, then the employer may be perceived as enforcing leave on the employee. Provided the employee is present and willing to work they should then be paid for this absence. In this situation it is unlikely to be deemed fair to deduct wages and may expose the employer to an unfair deduction of wages claim.

With the introduction of the Amber and Red Travel Warnings, at Solve we are advising and updating for our clients our Severe Weather policy normally contained in Employee handbooks. We will be amending these policies following the bad weather to include point one below and to further develop a number of existing solutions;


  1. Pay for the time that the ‘Red warning’ was in force, particularly if you as an employer were required to send employees home who were present and willing to work
  2. Enabling employees to make up the lost time at a later date- e.g. a couple of shortened lunches or half an hour at the end of the day, which in turn facilitates a focus on lost productivity and support the company with backlog rather than a one way conversation about pay.
  3. Taking any non-mandatory absence from work as part of annual leave entitlement.
  4. Or allowing any non-mandatory absence from work as special unpaid leave (in this case, pay will reduce accordingly to take account of the hours/days not worked).
  5. Work from home.

Contact us for further advice and support on how to deal with severe weather issues.

On 6th April 2018, and again on 6th April 2019, the rate for the minimum contribution to Workplace Pensions from both employees and employers is increasing.

All employers, with employees in a work place pension scheme, must take action to ensure at least the minimum amounts are being paid into their pension scheme.

This applies to you whether you set up a pension scheme for automatic enrolment or you decided to use an existing scheme.

If you’re using a defined benefits pension scheme then the increases do not apply.

Up to 5th April 2018
Employer minimum contribution 1%
Employee minimum contribution 1%
Total minimum contribution 2%

6th April 2018 – 5th April 2019
Employer minimum contribution 2%
Employee minimum contribution 3%
Total minimum contribution 5%

6th April 2019 – onwards
Employer minimum contribution 3%
Employee minimum contribution 5%
Total minimum contribution 8%

As an employer you can make the decision to move straight to the 6th April 2019 minimum rates from April 2018 if you wish to eliminate the need to make two changes.

By law a total minimum amount of contributions must be paid into the scheme.  You as the employer must make a minimum contribution towards this amount and your employee must make up the difference.  If you decide to cover the total minimum contribution required, your employee won’t need to pay anything.

This is not a change to pension scheme rules which requires legislative communications but we would recommend as good practice that you advise your employees in advance of the expected change to prepare them for the increase in their own pension contributions and your own pension provider should be able to help with this. With the contribution rate for employees tripling this will have a material impact on net pay for many.

If you offer a salary sacrifice we would advise you review communications issued and seek advice from your pension provider regarding any changes you may need to share with your employees.

There are also changes coming for the Auto Enrolment threshold rates:

  • Earnings trigger is to remain at £10,000 per annum.
  • Lower qualifying earnings will rise from £5,876 to £6,032 per annum.
  • Upper qualifying earnings will increase from £45,000 to £46,350 per annum.

In addition, ensure your contracts of employment and/or employee handbook reflect your new contribution rates and we can help with this.

Most employers nowadays offer some form of mental health awareness in the workplace, but is enough being done to address the implications that the menopause can cause?  The menopause can arguably be closely linked to Mental Health, considering it can lead to anxiety and depression and can affect every woman differently.

The menopause can have affect women emotionally and physically, as well how they perform and interact with colleagues and customers in the workplace, which can affect their absence levels and work productivity.  Some of the more common symptoms include night sweats, insomnia, lack of concentration and forgetfulness which can lead to problems with work performance, difficulties in making decisions and a decrease in an employee’s confidence levels.  Therefore, providing a supportive and understanding culture could potentially lower the Employer’s risk of a claim for sex discrimination under the Equality Act 2010.

Employment Tribunals

The first successful employment tribunal concerning the menopause was in 2012 and was in the case of Merchant v BT plc whereby the employee alleged that she had been discriminated against on the grounds of her gender when her employer failed to deal with her menopause symptoms in the same way that it would have dealt with other medical conditions. The employment tribunal held this discriminatory and unfair and said that a man suffering from ill health with comparable symptoms from a medical condition (in this particular case, affecting concentration) and with performance issues would not have been treated in the same way.

Previous case law has recommended that employers should take medical information into account in situations of capability and employers tend to seek advice from an employee’s GP and / or Occupational Health.

Considering more woman in the UK are now returning to work after having children and working later in life, employers would be wise to put in place the means to support their female employees through menopause transition.

How can employers help?

There is much advice and support for employers available and Solve. Can offer your business support when a women is going through the menopause.  Below are some useful hints and tips to get you started: –

  • Highlight menopause as part of a wider occupational health awareness campaign, so that all employees know that their employer has a positive attitude to the issue and that it is not something women should feel embarrassed about as well as providing guidance on how to deal with the menopause.
  • Sickness absence procedures should make it clear that they are flexible enough to cater for menopause-related sickness absence. Women should experience no detriment because they may need time off during this time.  Employers may choose to record sickness related to the menopause as an ongoing health issue instead of a series of short-term absences, which will ensure that the Absence Management Procedure will not be invoked unnecessarily and in turn will provide peace of mind to employees when discussing their health concerns.
  • Raise awareness amongst your leadership and management team of how menopause symptoms may affect women in the workplace.
  • Provide women in the workplace with information on how they can get support for any issues that arise as a result of the menopause. Because of the way society treats the menopause, many women will feel uncomfortable going to their line manager, especially if it’s is a man, and other options should be available. This may be through human resources or a welfare officer. Many employers have Employee Assistance Programmes that can act as a go-between and therefore, employers should communicate their Employee Assistance Programme (EAP).
  • Where possible, aim to accommodate flexible working requests that will help women manage their symptoms, which can include exhaustion, anxiety and depression because of sudden changes in their hormone levels.
  • Consider giving employees the means to adjust the temperature e.g. provide a fan, ensure that employees take their rest breaks, and provide cold drinking water.
  • Where appropriate, refer female employees to occupational health.  And ensure that managers are aware of reasonable workplace adjustments that may be necessary to support women who are experiencing the menopause.
  • Promote physical activity, making full use of wellbeing opportunities as an added value benefit by some healthcare and group risk providers.

For help and guidance on any health related concerns, contact us at Solve.