GILLIAN GILROY v Partnerships In Care — 2022

Gillian Gilroy was employed as a Senior Support Worker and the tribunal found that her contract was silent on sleep-ins. She had worked a rota including regular sleep-in shifts for many years, and the tribunal accepted the evidence of both witnesses that allowances for sleep-ins were commonly paid in the care sector. The claimant was allowed to amend to add breach of contract in the alternative, but the tribunal did not need to decide that alternative route once it resolved the wages issue.

The tribunal held that it was an implied term of the claimant's contract, arising from custom and practice, that she was entitled to be paid an allowance for every sleep-in shift. In reaching that conclusion it relied on the Low Pay Commission material referred to in Mencap, the claimant's evidence, and Ms Waghorne's evidence. It rejected the respondent's submission that the Mencap decision prevented reliance on the LPC reports for this purpose, and found the practice in the care sector to be reasonable, notorious and certain.

On that basis, the tribunal found that £21.50 was properly payable for each rostered sleep-in shift during February 2015 to January 2017 and that non-payment of that allowance amounted to an unlawful deduction from wages. It quantified the unpaid sleep-in allowance at £3,978.70 gross and directed that it be paid to the claimant, with tax to be dealt with by the employer.

The tribunal also held that holiday pay had to be calculated by reference to the claimant's basic pay, sleep-in allowance and overtime pay. Applying Hartley, it said the daily rate should be recalculated on a 365-calendar-day basis rather than a working-day basis, and left the parties to agree the recalculated figure. It stated that the case would operate as a lead case for related claims in the relevant period, and recorded that the NMW Regulations claim had been withdrawn and dismissed upon withdrawal.