Mrs M Borowska v Abbeyfield Stewartry Society — 2025

Mrs M Borowska and Mr P Borowski each brought claims about pay and conditions, including alleged unlawful deductions for an accommodation offset, sleep-in shifts, and handover time, together with holiday pay, itemised pay statements, and a breach of contract claim by Mrs Borowska. The tribunal held that none of the claims was well-founded and dismissed them all.

On the sleep-in/NMW issues, the tribunal accepted the respondent's evidence that its contracts provided for a flat nightshift rate, with the periods 9.00 pm to 10.30 pm and 7.30 am to 9.00 am paid at the basic hourly rate and the middle sleep period treated as an allowance equivalent to four hours. Applying the National Minimum Wage Regulations 2015 and Royal Mencap Society v Tomlinson-Blake, it held that only time when a worker was actually awake for the purposes of working counted, and that the claimants had not shown that any further sums were due for the sleep-in shifts.

On the accommodation offset claim, the tribunal found that the respondent provided living accommodation with sleeping facilities and an ensuite bathroom, so the statutory accommodation offset under regulation 14 of the National Minimum Wage Regulations 2015 was available and did not amount to an unlawful deduction. It also rejected the handover claim because the claimants had not proved that they were required to work 15 minutes before each shift without pay; the evidence showed an informal practice of arriving early as a courtesy and leaving early where the incoming worker had arrived.

Mrs Borowska's breach of contract claim failed because her contract said her house-assistant hours 'shall not normally be less than 22 a week' rather than guaranteeing a minimum number of hours, and the phased-return correspondence said extra hours could be offered wherever possible but could not be guaranteed. The holiday pay claim was dismissed because the outstanding holiday pay had been paid before the hearing, and the itemised pay statement claim failed because the payslips included gross and net pay, deductions, and aggregate entries for the relevant nightshift payments. No separate remedy award was made, and no ACAS uplift fell to be considered because no sums were awarded.