Implications of the Asda Equal Pay and Mencap Minimum Wage Cases from the Supreme Court and Other Matters

Posted in : 'Any Questions' Webinar Recordings on 8 April 2021
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: Equal Pay; Minimum Wage

In this webinar recording, Scott and Seamus discuss your employment law queries relating to the implications of the Asda Equal Pay and Mencap Minimum Wage cases from the Supreme Court and other matters.

The Recording


Scott: Good morning, everybody. How are you? My name's Scott Alexander, and happy Easter if it's not too late. I don't know what the protocol is when it comes to Easter as opposed to Christmas or New Year, but we're here again for the Employment Law at 11 as usual a week late because it was Easter, Good Friday last week. But as ever, we're here with Seamus McGranaghan from O'Reilly Stewart Solicitors and Rolanda Markey from the L&D team at Legal Island, is in the background working all the technology with us. Just to let you know, if you want to join Rolanda and me at Legal Island, we're looking for an admin officer. If you know somebody that wants to do it. I'm sure most of our listeners wouldn't be wanting to join as an admin officer but if you know someone that is, get in touch with Rolanda or me at the usual addresses and you can come along and have some fun with Legal Island setting up these webinars and lots of other fun tasks.

And our next webinar that we have is going to be on employment lessons from around the world with Elements GS and Sherisa Rajah on the 20th of April, but ... and more of that at the end of the time, but we also have, of course, a little ad here from Legal Island coming up which is about our hub, so if you're not a hub subscriber, you might not know about this, but if you go into Legal Island website, there's an employment law hub, which is where we keep all the recordings of these webinars. It's where we keep all our videos and podcasts and all kinds of stuff, all the in-depth articles and the templates and the case law reviews and such like are all in there. So if you're not a subscriber and you'd like a free trial, no obligation, just type, "Yes" into the question box. You'll see there's a question box on your right-hand side. Just type, "Yes," and we'll get somebody to give you a call next week or drop your line and set you up as a free trial. Now, a few things happened. You may have noticed we've had an extra week this month, and a few things have happened, particularly a couple of very big Supreme Court cases.

Poll Questions and Results

Question: do you have retail and warehouse staff in your organisation? Answer: 12.6% said yes, 56.9% said no.

76% of listeners do not employ staff for sleep-in shifts

Question: if the answer to the previous question was yes, do you pay, a set fee for the shift, the national minimum wage hour rate for the full shift, or other rate? Answer: 22% paid a set fee for the shift, 22% paid national minimum wage for the full shift and 56% paid other rate

Data Protection Issues Relating to Absence Records

Okay, the first question that came in here that we had was, if I can get it up, "Does the chief executive . . . " There's very little to do actually with the Asda case so but, hey, the question came in.

"Does the chief executive have the right to view sensitive personal data without an employee's consent even if they are the employee's line manager, for example, the nature of an illness?"

So we didn't discuss that one beforehand, Seamus, sorry about that, but it's the first one on my list, and it's a genuine question. It came in from a listener so we've got to go through them. So any thoughts about whether a chief executive should have the right to see things even if they are or are not a line manager.

Seamus: Yeah, so this is a common occurrence that I would come across just in relation to my own practice and advices, and there can be that aspect where you have a chief executive of an organisation, maybe of a very strong chief executive of an organisation and maybe someone that likes control, likes the power of it and can be very demanding in relation to things that they want to oversee, documents that they want to see, and if there's absence that they may be asking very straightforward questions of why is the person absent and what is the issue relating to that. So, I mean, there's a balance here to be got but, really, this is a question for me relating to . . . it covers GDPR and data protection and also one of justification. And if you look at the Information Commissioner's Office guidance in relation to personal data on an employment space that generally only the employee or their direct line manager and the HR staff, the person that is controlling the information should be able to access an employee's personal records or their personnel records and, you know, obviously, that may include very sensitive data. It could include medical information, and it could include medical reports or doctor fit notes and things like that as well.

And I think if the chief executive is the employee's direct line manager, then it would be appropriate for them to be aware of the personal data, specifically if someone was off on sick leave and there was reasons being presented for the absence, I think the line manager is entitled to know that. If you think of the duties and responsibilities of the line manager and it is to ensure that there is appropriate staff there to do the job and, you know, that the absence has to be managed in relation to how long the person is going to be absent for, you know, what is the recovery period, you know, because the holes and the gaps are going to have to be minded while the absence is ongoing. If it's going to be long-term, does the does the organisation need to bring in an alternative member of staff? So it's important that the right person is aware of the information.

That does not necessarily mean that the chief executive of an organisation is automatically entitled to sensitive and personal data about another employee. And there are various, you know, circumstances where I could say that the chief executive would be entitled to the information and, again, it comes down to the aspect of justification. And I'm thinking of matters if the chief executive, you know, very high up in the chain of command and if it was a third-party organisation, you've potentially got a board of the chief executive, but the position would be or a board of directors, but the position would be that maybe the chief executive is tasked with dealing with disciplinary or grievance matters or perhaps the appeal relating to those matters and it would be a matter for the chief executive and it may be requesting to see personal information and sensitive information and medical records particularly if the there's around issues relating to grievance . . . or sorry, absence and things like that.

I can certainly see the chief executive being able to access that. The chief executive may also be the data controller for the organisation and may as part of that role, you know, be in control or be entitled to see the documentation, but I think that the important point here is that it should always be justified, and it's also important to remember that we come down to an employee's rights under The Data Protection Act or under GDPR that the employee has a right to be told what records are being kept and how they're being used and that may include information about who has access to those records.

The employee is entitled to know, you know, if it's their records and what the confidentiality aspect is of those records and how those records are going to be held, you know, when it comes to training and development of work. So, you know, if the employee asks those questions, the employee is entitled to know who's going to have access to my information, and it's important that the information has been treated on a confidential basis.

I think it's just also worthwhile pointing out that, again, if an employee ask to find out what data is kept on them, they're entitled to know that information and the employer will have the 30 days to provide a copy of the information if it is requested. I always caveat this, Scott, and I know that we've said this previously, but an employer shouldn't keep any data for longer than is necessary and they should follow their data protection policy and procedure that they have in place.

Asda Equal Pay Case – Questions Arising

Scott: Okay, thank you very much, Seamus. If you're just joining us up with Seamus McGranaghan from O'Reilly Stewart, and I'm Scott Alexander from Legal Island. I see we've got a couple of questions here about COVID testing and another one about reasonable adjustments, so we'll come back to those when we can, but we did say we're going to deal with Asda. So the next question we've got up here, Seamus, is

"With regard to the recent Asda case, if an organisation has retail and other divisions including warehousing but the structure is such that they are separate companies, could the Asda funding apply to employees in this separate, but arguably, sister companies?"

Seamus: Yeah, well just maybe a bit of background about the Asda case to start with. This was a Supreme Court case, so this has moved from an employment tribunal in England through to the EAT, the Employment Appeal Tribunal, up to the Court of Appeal and then through to the Supreme Court. The hearing itself in the Supreme Court was heard on the 13th and the 14th of July 2020, and the decision then itself was issued on the 26th of March. So just in advance of the Easter break, you could start to see some of the details of the case filtering through in the media on social media. The case itself is a case of equal pay, and essentially what you have is that you have retail workers that are working on the shop floor in Asda. So our till operators, our people that are packing out, our supervisors, all those sorts of people on the shop floor brought a case of equal pay against the employer, Asda.

There's different information available, but it looks to be that there's around 35,000 of them in total employed across Asda that have brought these claims. The basis of the retail workers are that they are predominantly female employees, and they have brought a claim of equal pay to say that they are receiving less favourable terms and conditions in respect of their pay. And whenever you bring a claim for equal pay, you have to have a comparator. You have to be able to say who you're comparing yourself to. The crunch issue here was that the retail workers, again, who are predominantly female used the distribution employees ... I mean, this is the wording of the Supreme Court where they make this distinction between the retail workers and distribution employees in Asda. So all of the employees are working for Asda. They may be working under separate terms and conditions. They may be working under possibly even separate companies. I don't know the answer to that whether they are in the same company, but generally, they are all working for Asda. Asda is overall the employer. And the distribution workers are predominantly male.

So there's where we have . . . obviously, equal pay, it's on the basis of, you know, different genders, sex discrimination and we have the female retail workers making the claim against the comparators of the distribution employees, here the males. And what the allegations are that they're saying the distribution employees are paid a higher hourly rate than the retail employees, and that rate is somewhere along the lines of between 80 pence per hour up to £3 an hour. So there's quite a range of coverage here. The claims were originally brought in the tribunal in England in around 2014. I think the initial hearing was in 2016 and that they were specifically in relation to whether they were being treated differently on the basis of equal pay. So the case initially was dealt with by way of a preliminary hearing point, and that point itself was in relation to whether it was correct and whether the case could proceed on the basis that the distribution employees, the male employees, were appropriate comparators.

And what Asda essentially argued was that they weren't appropriate comparators because they didn't work on the shop floor with the retail employees, that they were based at a separate establishment. So if you think about it in terms of what we know of locally in Northern Ireland, we'll have our large Asda stores or shops and then we'll have the distribution aspects that are located around Belfast and up in Antrim and places like that where you have the distribution staff.

And I think, Scott, whenever we talked previously, you're talking about distribution, maybe about and pickers, you know, they pick the orders, they cage them up and they put them on the lorries and take them out to the stores themselves. And the issue really was whether or not this was an appropriate comparator. The threshold for the equal pay claims is for the claimants. They must be able to compare themselves to a valid comparator, and the tribunal of the first instance essentially said that, yes, they were a suitable comparator, and that was upheld by the EAT. It was upheld by the Court of Appeal, and Asda appealed that point specifically on through to the Supreme Court, and the question for the Supreme Court was whether employees in Asda retail operations were entitled to compare themselves with employees in the distribution centres so they could rely upon the various pieces of legislation and essentially so that they are in the same employment as defined in the 1970 Equal Pay Act. So the Supreme Court have better batted down into this issue.

There are other prior cases that the point is being considered upon, but essentially the Supreme Court came back to say that they were in agreement with all the previous decisions of the Court of Appeal, the EAT, and the tribunal decision. And it is a complex enough case to read through, but essentially it comes down to really . . . the main points in the case as I can see it is that the comparator must be employed by the same or an associated employer. So you might work for Asda. You might have different divisions, different departments within Asda but, in general, provided that Asda is your employer, that would be the first hurdle. The second is that if a claimant chooses a comparator based on another establishment, there must be common terms that apply to both establishments. So we know that the situation here, in this case, is that the retail workers tend to work in the stores, the Asda shops, and the distribution workers are working at a separate place that could be two miles, it could be ten miles, it could be more, away from those workers. And the issue is that there has to be common terms.

And when we say common terms, they don't have to be identical and they do not need to be the same. They just have to be common. The question really was that .. . we have the retail . . . I mean, the distribution locations, they were separate from one another and the question was, "Did common terms apply between the claimants and their comparator establishments satisfying the common terms requirement?" And it was the decision of the initial tribunal followed right through to the Supreme Court that the distribution employees and would have been employed on substantially the same terms if they had been employed at the claimants' site or at the claimants' establishment. So that was the common terms. In aspect, they were saying if they were employed on the same site, they would have been employed essentially on the same terms.

And so that is essentially what the Supreme Court have come back with, and there's an important note in the Supreme Court's case summary as well, but I'll touch on that a little bit later on, but essentially what we have here is a situation that the retail workers are able and allowed to use the distribution workers as their comparator even though they're not based at the same site or at the same establishment. And just as we were mentioning there in the poll, this will have broader implications because it's not just limited to the retail industry. It could be looked at across all industries, whether in the public or the private sector.

Use of Job Evaluation in Equal Pay Cases

Scott: Okay, Seamus. Could I maybe come in there just to, I suppose, emphasise that point? When I started in HR, we were chatting beforehand in 1986, unbelievably. There was a public sector, equal pay process going on, and they were looking at job evaluation and trying to equalise the jobs and they were trying to compare, when I worked in Scotland, you know, a care assistant with somebody that was working on one of the bin lorries and, you know, it's real chalk and cheese, apples and oranges, types of comparisons there. But that's, in essence, what they're trying to do in the Asda cases, and that's what would apply in the situation for any of our listeners here that if you have people who do a job, they don't have to do the same job. If you can turn around and say, "My job is of equal value to you because I'm doing stuff which is just as complex or requires different skills or you know I've got, you know, qualifications that that person over there that's getting paid more than me doesn't have to have, and therefore I should be paid more money." That could apply, more or less, to any employer, but it goes back in Northern Ireland to the Equal Pay Act 1970, in which case it's got to be based on sex.

It's got to be that one group is predominantly female or the individuals, one sex, and the comparator is a different sex or it's a group of workers who are predominantly of that different sex. That's the case. Going back to the question that we got about the two locations, if you like. If they're structured as completely separate companies then that might mean that there cannot be a valid comparator, but if you've got these generally broadly common terms, i.e. Asda, and they'll get similar holidays and they're paid from the same source and so on then that could bring any one of our listeners' organisations into this amber of equal pay where you get paid more in one location than you do in another. Is that the case? That's generally what we're talking about here?

Seamus: Yeah, 100%. I think it's important to highlight that there have been no decisions made by the Supreme Court in relation to equal value in respect of whether the employees are doing the same or similar work. That's a different argument for a different day altogether, but it's the important legal point here is it's the ability for the retail workers to be able to compare themselves with the distribution workers that are based to separate establishments, and that's the key point in relation to this case.

Scott: It's worth a lot of money. I remember reading that there was a Birmingham City case where it was council workers and mainly female workers that compared themselves to male workers within the council and the bill there was estimated at three-quarters of a billion. In fact, if I remember rightly Birmingham Council had to sell the NEC to pay their bill. It was three-quarters of their entire budget. Their annual budget was what they reckoned the cost in back pay would be not . . .

Seamus: I mean, an incredible amount of money.

Scott: That doesn’t even include once you've increased the payment of the female workers within the Council that they'd have to pay on an ongoing basis. That was just the back pay. It was massive amounts of money, and you said it was something like 8 billion, they reckon, in the retail sector. The claims are going on at the moment.

Seamus: Yeah, and I'm not to, you know, simply talk about Asda, but there are similar claims and cases involving a lot of the retail stores, Sainsbury's and Tesco and also Next. And so it's not just food retail at this moment in time. It could affect any, you know, retailer that has that separation and, again, any other business and any other industry that has separate departments or separate, you know, elements to the business that they're able to . . . you know, but the potential, in this case, is that you can, you know, draw your net out wider in relation to your comparators. The information that I read was that they said that potentially the back pay alone could be around 8 billion and, you know, a huge colossal amount of money and, you know, you can understand on that basis that Asda have pushed this the whole way through to the Supreme Court to get a decision, but it will now need to go back to the Tribunal, you know, for consideration in respect of the next stage of the claim. Certainly, it does not mean that the female retail workers here have been successful with their claims for equal pay. It's not at that point yet.

Covid Testing Before Returning to the Workplace

Scott: Okay, could we move things on . . . we're going to deal with those sleepovers . . . people sleeping on the premises in a minute, but we've got a question in here. We can't get away from COVID. I know a number of us have had the vaccine so that's very good, but,

Could it be reasonable, Seamus, for an employer to require an employee to get a COVID test before returning to work where they have been told that the employee was breaking lockdown restrictions over the weekend and it's been reported on social media or seen on social media that that employee's been doing?

Seamus: Potentially, and I think it would depend on the industry that you're working in. I mean, obviously, if you are in a care home, a nursing home, something, where there is, you know, that vulnerability, is there or even a business that is close contact. You know, we know about various food production companies and the meat factories and things like that. I think it wouldn't be appropriate just to summon the employee and tell them they have to have a COVID test. There needs to be some form of reasonable investigation conducted and carried out in relation to the circumstances, and I think before any decision could be made, to say to the employee that you're not permitted to return to work until you've had a clear negative COVID test and, you know, the company would need to . . . or the organisation would need to satisfy itself that that's reasonable in the circumstances.

So I think that an investigation . . . what that would mean having discussions and meeting with the employee and putting it to them if they had breached lockdown provisions and, really, doing a risk assessment, I think, and making sure that you walk through that process and that there's a careful note taken and the records are kept before there's any sort of decision made to say you can't return to work until you have a negative test.

Scott: Or indeed we're not going to pay you.

Seamus: That's a whole nother issue, but certainly, you know, it takes me back to, you know, maybe in around September, October, November time when numbers of COVID were on the increase and some people were, you know, leaving the country on flights maybe for recreational or family reasons or whatever it was, and I had a number of queries at that stage where employers were saying, "Look, if this employee comes back into work and is infected, you know, there's the potential of closing our business down for a number of weeks. It would be my preference that this employee, you know, has a negative test before they're permitted to return." And, you know, given advices on that and taking a cautious approach with it but absolutely understand the employer's concerns.

Reasonable Adjustments for Disabled Employees

Scott: Okay. We've had another question in as well, and then we'll get right into the Mencap case.

If you have an employee who did not confirm at application that they had the need for any reasonable adjustments but now after a period of one year they need a reasonable adjustment, what is the employer's obligation?

Seamus: Well, you know, look, I think that we all ask for potential applicants and employees to be open with employers in relation to any needs that they have or if there are disabilities there, but I don't think that after a year's employment that the employee could be penalised. The employee will have their employment rights at that point. They're obviously protected from any sort of discrimination on the basis of disability arising in relation to reasonable adjustments. So, again, it would be about meeting with the employee and getting a clear understanding of what the situation is and what the problems are, and what the requested adjustments are for the employee . . . with the employee, and that may mean engaging in medical evidence, that may mean getting a occupational health report or a specialist report or possibly even just a GP report.

I can certainly understand the frustration. It's a common occurrence where someone joins an organisation and does not disclose, you know, medical issues or disabilities in advance of that and then they arise during the course of their employment, but it wouldn't be a get-out-of-jail card for the employer since they can say, "Well, you didn't disclose that at the start of your employment and therefore we don't need to do anything about it." And once they become your employee there is an obligation that arises, so it is working with the employee, and I suppose, you know, it's getting to an understanding of why the issues are arising now, you know, without prejudging that because it may be to their detriment that the employee hasn't, you know, provided any information about any concerns or issues that they have, but certainly my view would be that there is an obligation on the employer to investigate and make those reasonable adjustments where possible.

Scott: You can understand the employee's point of view as well because if they declare thing on the form, then there's a pretty good chance they're not going to get an interview even though reasonable adjustments should be made for somebody but, you know, the experience of people who are disabled and the levels of unemployment there are ones where you can kind of understand somebody holding back. If the question hasn't been asked, they're not going to volunteer it, and therefore it leaves an employer in a bit of a difficult position, but the employee's thinking well, you know, "My best chance to get a job is to not tell them I'm disabled."

Seamus: Yeah…

Impact of Mencap Case on Payment for Sleep-in Shifts

Scott: Okay, let's move on to the Asda case. There's a couple of questions in here.

We pay a set fee for sleep-in shifts. Does this recent ruling, the Mencap ruling, so we'll take a wee bit on that, mean that we can continue to do that and a secondary one, when it comes to calculating holidays, should the whole time spent on an overnight sleep-in shift be included in hours worked for holiday pay or just the time they are awake and working?

So let's go back to the Mencap case and a little bit of background briefly, Seamus, and then look at this one here where they pay a set fee . . . so they're currently paying a set fee, and can they just continue to do that?

Seamus: Yeah, the Mencap case relates to . . . again, this is a Supreme Court decision that we received in March I think, so the week before they asked the case around the 21st of March. And this is a good case in terms of we have complete clarity now in respect of the position, so the question is asking, you know, "We pay a set fee for sleep-in shifts. Does the ruling mean that we have to continue to do that?" Or, "Does this mean that we can continue to do that?" The answer to that is, in essence, yes. So in this case the issue to be decided was whether homeworkers who are required to remain at home during their shift or if it's in a residential care scenario for workers that sleep in. And so if I have to, as part of my job, sleep overnight in the organisation, am I entitled to my normal national minimum wage for the time that I sleep in? Or am I only entitled to the national minimum wage for the hours actually worked? So those are the questions that the Supreme Court were dealing with.

Interestingly, they did go back, the Supreme Court, they looked at this sleep-in shift time on whether or not that qualified as work for the purposes of the national minimum wage regulations, and essentially what they said was that there was no obligation to pay the hourly rate or to pay the national minimum wage for those sleep-in shifts, that there was only an obligation to pay where there was work involved during those shifts.

So background to the case was that the claimant would essentially sleep in during the shift but would rarely have to engage in actual work so that there would be days and weeks where the claimant was able to sleep entirely during the shift and there were times where maybe something would happen in the middle of the night and they would have to engage in some form of work. Interestingly, they were paid a set fee in relation to that, the sleep-in shift. So say that they were getting £50 for the shift itself, you know, that would probably in all essence cover the national minimum wage in any event, but the circumstances are essentially if they were having to do additional work beyond, that they were maybe getting and their national minimum wage or their early rate in relation to the work that was involved during that position, so getting the set fee and then getting payment on top of that.

And the Supreme Court has come back clearly and said, "Look, the situation is that if you doing those sorts of sleep-in shifts, the employer can agree to a set fee with you in relation to that. If you're having to work during that then, yes, you're entitled to the national minimum wage. If your set fee covers the national minimum wage, then effectively you're being paid for it in any event."

And so the Court has been very clear. What they made a distinction on, which was interesting, was that they said that they were drawing a clear distinction between whether an individual is actually working or is available for work and so the aspect of sleep-in, and then they said that you were available for work if you were only available for work, it should only be the time that you're actually working that counts towards the calculation of the national minimum wage. So they've been very clear about the position.

Interestingly, they did go back to when they looked at the national minimum wage aspect. They did go back to consider the Low Pay Commission and the . . . Legal Island has a really good overview on this, Scott. I'm just saying that, at this point, in terms of the online hub, there's a good overview in relation to that about the Low Pay Commission, how it was established, and the reasons for it . . . why was it established at the time, the LPC or the Low Pay Commission had recommended that workers should be entitled to national minimum wage when they're awake and unrequired to be available for work.

So the court specifically went back and looked at that. They also overturned a 2002 case of British Nursing Association versus the Inland Revenue. And it was, again, about this aspect of being available for work and actually working, but we do have clarity that the circumstances are that you can be paid a set fee for those shifts and if that works out less than the national minimum wage for any hours that you actually have to work, you're entitled to the national minimum wage at that point.

Scott: Okay, I mean, I suppose it's a difficult one because if the person doesn't stay on the premises, the operation of those care homes and such, like, they couldn't operate. They need somebody there, not only just for insurance purposes, but because something might go wrong. And then you'll have people maybe who work in hospitals will be getting paid throughout the night. They may be doing some paperwork. They may not be doing some paperwork, but they're going to have to be there in case there's an emergency, and you can understand where the conflict arises.

We've had a question just come in though, Seamus. And it highlights, I think, the fact that this is a bit wider than just care homes and so on. This question is,

"We've got HGV drivers and they get net £140 per day inclusive of standard overnight allowance which is approximately net £26.20. When they are on holiday, this allowance is deducted. There may be occasions when they get £140 regardless of the need to sleep over when working. Would this entire full pay of £140 be due during leave?"

I might have to read that again. Will I?

Seamus: I think I got the essence of it, and I think that the position is that were the payment, seems to be that there's a payment included for the enhancement essentially in relation to where they are, not working, but sleeping is part of the role because they can only drive for a certain amount of time. If that forms part of their normal pay when it comes to holidays, that should be considered as part of their normal pay would be my thoughts without giving it too much thought, but just sort of off the cuff, that would be my gut reaction to it.

Scott: It's similar to the British Airways case from years ago that started off all the working time claims there. Williams, if I remember, British Airways and Williams, you know, where they were given a flight allowance but when they went on holidays, they didn't receive their flight allowance because they weren't flying. And it's seen as a disincentive to take holidays because you're not getting your normal pay, so I think, yeah, if somebody's off and they take a week's holiday, they should be getting whatever they would have got had they been working if that includes some kind of kind of additional payment that they would have got as a result of, in this case, having to sleep in the cab overnight presumably, in the van, then that should be paid.

Is that similar then, Seamus, to the question that came in before we started broadcasting today? When it comes to calculating holidays, should the whole time spent on an overnight sleep-in shift be included in hours worked for holiday pay or just the time they are awake and working? And I suppose that one there is different insofar as the normal pay would vary in that case because people who are sleeping overnight and have to get up to deal with residents and such, like, they would have some part which is a basic allowance and other parts that would have to be at least topped up the national minimum wage for the hours that they're working and, therefore, their pay would vary and therefore, you'd have to look at the previous 12 weeks. Is that the case? Maybe the difference it's not just that they should get the allowance but because the pay goes up and down, the employer's required to do a calculation there.

Seamus: Yeah, I mean that would be my thoughts exactly in relation to it. I mean, I think that the distinction of the Supreme Court have made, it would seem to me that the sleep-in payment . . . there's a distinction there between the payment that you receive and then if there's additional work involved over and above as you say on top of the national minimum wage and I don't think that it automatically qualifies you to get holidays in relation to, you know, any work that's not conducted or carried out but where you're working above and beyond that I think that the pay records will reflect that and you should be paid accordingly when it comes to your holiday entitlement.

Scott: Okay, thank you very much, Seamus. Thanks to everybody else. There was another case that came through that arose partly out of a Supreme Court case which is a Pimlico plumber's case with a chap looking for their holidays pay where the employee lost because they'd actually taken the holiday pay or taken the holidays and hadn't been paid for it and, therefore, the clock started rolling, so maybe we'll have a few questions coming in about that. And I see there's another question just come in there. So that person has just sent that through. I know who you are, and I'll drop you a quick line after this. So the contact details are there.

The next webinar that we're going to have is on the 20th of April. And you can see it looking at the Uber decision, it's a bit more than that. It's a new series, a quarterly series of webinars that we're going to have with Elements GS and Sherisa Rajah, and it's about taking lessons from developments around the world. So it might be how does the Uber case impact on the gig economy, not just for you but how has it worked for other people as well, and looking at best practice and what everybody else, if you like, has done. So, for instance, if we're looking at working time in Austria, they've introduced legislation or they're introducing it about the standard of equipment that employers have to give homeworkers.

So we'll be looking at that and can we take best practice from around the world. So that's going to be on the 20th. We're going to be looking at those issues. So thank you very much, everybody, for coming along. We will see you very soon on the 7th of May is the next time with Seamus. The 20th of April is the next one with Elements GS. Thanks very much. You can listen back on the website. Should be this afternoon, and it will be turned into a podcast as well and, in due course, we will have the transcript for you. Keep sending your questions, and we'll see you next time. Take care everyone. Bye-bye.


This article is correct at 08/04/2021

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Seamus McGranaghan
O'Reilly Stewart Solicitors

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