Focus Care Agency v Mr B Roberts: UKEAT/0143/16/DM

Posted In: Case Law
  • Case Reference
  • Legal Body
    Employment Appeal Tribunal (UKEAT)
  • Type of Claim / Jurisdiction
Issues covered: On-call; Sleepovers

Scott: The Focus Care Agency v Roberts case is about on-call and sleepovers. Very expensive case, this, for some people in the care industry. So tell us about that.

Mark: Yeah. The whole notion of someone who has sleepover responsibility, especially in the private independent healthcare sector where a great deal of the focus has been on here because of the financial ramifications, the cases and the subject matter of someone being on-site on-call has been rumbling on for years.

Now, for the first time in the Focus case, the courts have started to really grasp the nettle and say, "Look. There is a multi-factorial approach that needs to be taken here," and the clear direction of travel is if the multi-factorial approaches are met by the individual, then for all of the time that they're on-site on-call, even if they're asleep, they're entitled to the national minimum wage.

For example, organisations like Mencap have said, "Look. The back-pay provision for this alone is going to cost £400 million." The government have set up a scheme to allow employers to absorb the economic impact. This is up for an appeal in March, but there seems to be a clear pattern of thought that the appeal is not going to be successful.

Scott: Working time is working time. We had a case this week where the courts have determined that you need a 20-minute break, a full 20-minute break.

Mark: Yes, not an aggregated 20 minutes.

Scott: No.

Mark: That's right.

Scott: If you're off on a shift and you get four five-minute breaks, that's not compatible with working time rules. So those breaks, the annual leave, everything is driving towards these being immutable rights for workers.

Mark: And the European courts have gone really back to basics, especially in areas such as holiday pay. If you're a worker, you're entitled to be paid holidays. That means being away from work and getting the pay that you'd be entitled to including overtime, etc., and there is a provision for pay to carry over. The European courts seem to be going really back to basics, giving it a very literal interpretation of what the working time regulations say.

Scott: And that sleepover case is very much the same.

Mark: Absolutely.

Scott: It's just going in that same direction.

Mark: Yeah.

This article is correct at 11/01/2018

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Mark McAllister
Labour Relations Agency

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