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July Newsletter 2018 - Additional services from Acton Jennings

Posted on Thursday 19th Jul 2018

Sleepover shifts and National Minimum Wage

From time to time a judgment is handed down that accords with most people’s notion of common sense. The Court of Appeal judgment in the joined cases of Royal Mencap v Thompson Blake and John Shannon v Jakishan and Prithee Rampersad (t/a Clifton House Residential Home) is one such case.

In his judgment, promulgated last Friday (13th July 2018), Lord Justice Underhill provides much-needed clarity on whether workers are entitled to the national minimum wage for each hour spent during “sleepover shifts”. The stakes were high: a possible £400 million in back pay for many employees working in the care sector.

Previous case law used a “multifactorial” approach which, in the words of the judgment was “hard to understand” and created much uncertainty for employers. Nor did the Lord Justice hold back in his criticism of previous wrongly decided cases (e.g. Whittlestone v BJP Support [2013]) stating the “basic artificiality of describing someone as working – still more, as actually working – during a shift when it is positively expected that they will spend substantially the whole time asleep”.

The key expression is “actually working” to be distinguished from “available for work”.

In “availability for work” cases, the Court noted the “sleep-in exception” at Regulations 27 (2) and 32(2) of the National Minimum Wage Act 2015 which states “hours when a worker is available only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping”.

Lord Justice Underhill concluded that where a worker is contractually obliged to spend the night at or near their workplace with the expectation that they are to sleep for all or most of the period but may be woken if required to undertake some specific activity, they are to be classed as “available for work” rather than actually working and so fall within the sleep-in exception above. Therefore, put succinctly, “the result is that the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working”.

The position needs to be made clear in staff contracts of employment and there will be some detailed record keeping necessary but compared to millions of pounds in back pay that’s a small price to pay.

A lot of very clever learned judges have considered this issue and yet if at the outset one had asked the opinion of the famous man on the Clapham omnibus; he would probably have come up with an answer very much like that in the judgment.

Unsafe Construction Site Leads to Fines

There need not be an accident on a building site for the HSE to act against those controlling it. Inspectors from the Health and Safety Executive (HSE) visited a construction site on Gladesmore Road, London on numerous occasions in 2015 while building work was taking place at the property.

They found poor health and safety conditions on site including dangerous work at height, excavations not shored up, and poor welfare facilities. This resulted in numerous prohibition notices, improvement notices and notifications of contravention being served on the contractor and client. Prosecutions followed.

At Southwark Crown Court Mr Bodnariu, the contractor, pleaded guilty to failing to plan, manage and monitor the work on site ( breach of regulation 15(2) of the Construction (Design and Management) Regulations 2015, and was sentenced to eight months imprisonment, suspended for 12 months, 250 hours of community service, and ordered to pay costs of £1,000.

WEL Estates Limited, the client company, was found guilty of failing to make suitable arrangements for managing a project, including the allocation of sufficient time and other resources (in breach of Regulation 4(1) of the Construction (Design and Management) Regulations 2015) and was fined £20,000 and ordered to pay costs of £5,000.

Mr Yoel Lew a Director of WEL Estates Limited was found guilty of breaching Section 37(1) of the Health & Safety at Work etc. Act 1974 and sentenced to 200 hours of Community Service.


Acton Jennings LLP is very pleased to announce improved legal protection scheme for its clients provided by ARAG plc.

ARAG plc is a legal expenses insurance provider, operating nationwide from headquarters in Bristol. ARAG plc is part of ARAG SE recognised as a global leader, generating an annual premium income of over €1.5 billion. ARAG are recognised experts and we are very pleased to be allowed to work with them.

All H&S clients where the HSE is the enforcing authority i.e. among others

  • factories
  • farms
  • building sites
  • mines
  • schools and colleges
  • gas, electricity and water systems
  • hospitals and nursing homes

will benefit from FFI protection up to the policy maximum of £100,000. The policy provides defence costs to appeal an FFI award, where there are reasonable prospects of success and, if the appeal fails, the fee itself is covered by the policy.

There are no additional charges for this increased cover.

Once again, we would remind clients that our advice must be sought and followed in order for cover to be extended under the policy.

There are no additional charges for this increased cover.

Once again we would remind clients that our advice must be sought and followed in order for cover to be extended under the policy.

Website, email, and GDPR - Is it time for change?

Many businesses are confused by the requirements of the General Data Protection Regulation (GDPR) which took effect on May 25th 2018.

Put simply, this requires all businesses to take sufficient steps to protect the privacy of personal data, and to ensure that there are provisions in place for the secure storage and security of such information.

Most businesses will need to take steps or implement procedures to comply with the requirements of GDPR. Not least will be changes required in terms of information retained about employees (personnel records), email security and websites. You will need the express permission of employees to retain personal data about them which may cover simple matters such as personal contact details and next of kin etc. If you use external payroll services, you will need your employee's consent to share their information with the payroll service providers.

All employees who may use email for personal purposes in work are affected and procedures will need to be put in place to protect and secure this source of personal data.

Businesses will need to examine whether websites need to change - Many will need their contact forms altering to give express permission or consent for ongoing future contact. Equally, if a website uses cookies, then consent will need obtaining by the visitor for this. (Many websites use cookies to make the re-visit user experience easier) This can be created via pop ups or other online agreement tick boxes.

Many businesses will need to display a data sharing and privacy policy which increasingly are becoming part of the content of a professional website.

With these issues in mind, we have linked with a professional website and internet consultancy that has been established for over 20 years to offer advice and assistance with these areas. They not only help business to comply but have a successful strategy of improving website designs. Significantly, they have developed a proven strategy of achieving premium rankings for businesses with search engines. If any Client would like a free call to advise on such issues, we can arrange this. There will be no sales patter, but simple advice given on improvements necessary to websites for compliance, design issues, or search engine rankings.

If you would like help in these areas, please call us on: 01924 416888...and we will arrange for contact by a specialist advisor.

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