Are carers who sleep at a client’s home, technically being ‘on call’, entitled to the minimum wage while they are asleep?
No, held the Court of Appeal in MenCap v Tomlinson-Blake.
One of the judges in the case decided that workers sleeping in under this sort of arrangement will only be entitled to have sleep-in hours counted for minimum wage purposes where they are, and are required to be, awake for the purpose of performing some specific activity.
A reassuring decision for the care home / care sector.
Should voluntary overtime be taken into account when calculating holiday pay?
Yes, if it is paid over a sufficient period, held the EAT in Flowers v East England Ambulance Trust (EEAT).
Various members of the ambulance crews of EEAT had clauses in their contracts relating to ‘non-guaranteed’ overtime (which was mandatory but irregular) and ‘voluntary’ overtime (which was entirely voluntary, and also irregular).
Each member of staff had varying levels of each type of overtime.
On a holiday pay claim to the employment tribunal, the ambulance crews argued that their voluntary overtime should count towards their ‘normal’ remuneration and therefore be included in their holiday pay calculation.
On appeal to the EAT, it was held that voluntary overtime was part of normal remuneration if it was paid over a “sufficient period of time” which is a matter of fact for the employment tribunal to determine.
Therefore you will need to consider what period of time voluntary overtime is worked over and with what degree of regularity in order to assess the risk that the overtime pay should be included in the calculation of holiday pay.