Mrs M Borowska and Mr P Borowski v Abbeyfield Stewartry Society: 4100377/2025 and 4100378/2025
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4100377/2025, 4100378/2025Venue GlasgowHearing 26 and 27 August 2025
Between
Mrs M Borowska and Mr P BorowskiClaimantAbbeyfield Stewartry SocietyRespondent
Before
Employment Judge M RobisonMrs M Borowska for claimantMs A Wright for respondentTribunal Advocate for respondentDate 23 October 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claimants’ claims are not well- founded and therefore are dismissed.
REASONS
[1]The claimants each lodged separate claims in the Employment Tribunal on 12 March 2025 claiming unlawful deductions from wages and breach of contract. The two claims were combined by case management order dated 19 May 2025.[2]The first claimant was employed as a house assistant and home carer for the respondent until she resigned on 13 May 2025. The second claimant is still employed by the respondent as a house assistant.[3]A final hearing in this case was listed to take place on 26 and 27 August 2025. Interpreter and representation[4]Before the hearing commenced, it became apparent that a Polish interpreter had not been booked, although the Tribunal had confirmed that one would be provided (by letter dated 2 May 2025).[5]At the start of the hearing, I suggested that it would be possible to postpone the hearing to secure the services of a Polish interpreter for a relisted hearing. After some discussion the claimants agreed that they would be happy to proceed without an interpreter. However it was agreed that, if it was possible to get an interpreter for the second day, that would be helpful.[6]At the start of the hearing both claimants made contributions and I explained that one only should represent both which meant only one doing the speaking. The first claimant elected to undertake the role of representative and to liaise with the second claimant during the hearing. Application for strike out – holiday pay claims[7]On the evening prior to the first day of the final hearing, the respondent advised that they had paid the holiday pay claimed by both claimants in their updated schedules of loss and statutory sick pay claimed by the second claimant. This was because, when preparing for this hearing, the respondent accepted that there were still sums due in respect of holiday pay because they had not included the NMW uplift in their calculations. That difference has now been paid, and accordingly Ms Wright for the respondent made a written application for the holiday pay claims to be struck out, the claimants having declined to withdraw them.[8]At the start of the hearing, the claimants advised that they were aggrieved that this had happened so late in the day and did not agree to any settlement of their claims and asked for the payments to be reversed. I explained to the claimants that it was not possible to reverse the payments and that if the sums they sought for this claim were in fact now paid then those claims would in all likelihood be dismissed anyway.[9]After further exploration I ascertained that the reason they did not want to withdraw their claims for holiday pay was because if they were successful in this claim then they were seeking holiday pay for the hours worked but unpaid for. It was therefore agreed that evidence required to be heard in respect of all issues for determination. Issues for determination[10]There was then a discussion about the outstanding claims to be determined. This was by reference to the claims set out in the narrative of the claimants’ ET1 claim forms.[11]In regard to the claims pursued by the first claimant, the first claimant makes claims for: 1) unlawful deductions from wages in respect of “offset accommodation” deducted from her wages when she was on nightshift, which she argued was not permitted by her contract or set out in her payslip; 2) for hours worked during the night between 10.30 pm and 7.30 am when she alleges that she was not paid the national minimum wage (the sleep-in shifts) (the claimant confirmed that point 6 was essentially a restatement of this point); 3) underpaid holiday pay, calculated over 12 weeks rather than 52; 4) breach of contract through failure to offer minimum guaranteed contractual hours after lodging grievance; 5) payment for 15 minutes for each shift when engaged in handover.[12]In regard to claims pursued by the second claimant, he seeks 1) payment of the national minimum wage on the same grounds for the off-set accommodation, 2) for the sleep-in shifts; 3) holiday pay and 4) payment for 15 minute handover before each shift.[13]The respondent accepted that the claimants were also claiming that there had been a failure to provide them with pay statements itemised as required. The respondent also argued that at least some of the claims were timebarred.[14]The claimants also seek a 25% uplift for failure to follow the ACAS code of practice in regard to the handling of their grievance about the above issues.[15]The claimants confirmed that they are not claiming for allegedly having their shifts reduced because they lodged a grievance (beyond the first claimant’s claim for breach of contract in regard to the failure to offer minimum guaranteed hours). Dealing with remedy[16]Parties had put together a large bundle of documents in preparation for this hearing and the claimants had lodged updated schedules of loss. I explored with parties the possibility of dealing with liability only at this hearing because I was concerned that there would be insufficient time to deal with the intricacies of the sums allegedly due. I explained to the claimants that otherwise there may be insufficient time in the two days allocated to hear all of the evidence. A separate remedy hearing would then be listed, but may not be necessary even if the claimants are successful, because parties could agree the sums due after a judgment regarding whether the claims were due at all. Ms Wright agreed that a liability only hearing was sensible because having looked at the updated schedule of loss she believed that the respondent would not necessarily dispute the sums that were sought should they be found liable to pay them. Given the outcome of this hearing, no remedy hearing is in any event necessary.
Evidence
[17]Although the first claimant had agreed to represent both the claimants, all parties were content that I ask questions of the claimants during their evidence in chief.[18]We were able to secure an interpreter, Ms Moore, from 11 am on the second day. This meant that the first claimant Mrs Borowska gave evidence in English on the first day and into the second day. The second claimant Mr Borowski gave his evidence through the interpreter on the second day.[19]I asked both claimants at the end of their evidence if there was anything further they wished to add, explaining that they would have the opportunity to present a summary of their claims in submissions after the evidence.[20]As it transpired the claimants’ evidence took longer than anticipated and by lunchtime on the second day it became clear that there would be insufficient time to hear submissions.[21]It was agreed that we would only have time to hear the evidence of the respondent’s witness in the afternoon. Ms Wright said that she anticipated (accurately, as it turned out) she would be around one hour, which left one hour for cross examination.[22]Because of limited time it was proposed that Ms Moore would translate only the first claimant’s questions and not the answers and I was happy to agree to that, as was the claimant. The Tribunal then heard from the respondent’s witness, Ms A Pickthall, operations manager with the respondent.[23]At the end of the evidence on the second day, the first claimant said that she was satisfied that she had the opportunity to ask all of the main questions she intended to ask her. Submissions[24]With regard to submissions we discussed the option of returning later for a third day to hear submissions by video or whether it would alternatively be appropriate to invite written submissions. The first claimant said that it would be difficult for her to get another day off work and she was quite happy to produce written submissions. Ms Wright said she was happy to go along with whatever the claimants preferred.[25]Ms Wright was also happy with my suggestion that she produce written submissions first so that the first claimant, given that she is unrepresented, could consider them before preparing theirs. I suggested she to so within 14 days and she submitted them on 10 September 2025. The claimant agreed to produce their written submissions within a further 14 days, and did so by 19 September 2025. Findings in Fact[26]On the basis of the evidence heard and the documents lodged, I find the following relevant facts agreed or proved.[27]The respondent is a registered charity and not for profit organisation with a board of trustees. The respondent has provided supported living for older people for over 60 years. In 2017, the respondent expanded to provide a care at home service.[28]The first claimant commenced employment with the respondent on 27 October 2021 as a house assistant and care at home carer. She was issued with a contract of employment on 3 October 2022.[29]Under the heading “pay arrangements”, her contract states that, “Your rates of pay are: day shift (9.00 am – 3.00 pm) is £12.41 and hour. Back shift (3.00 am to 9.00 pm) is £12.41 an hour. Nightshift, including sleep-in (9.00 pm – 9.00 am) is £85.71 a shift. If awake on active duties with residents for more than four hours during sleeping hours during the period 10.30 pm until 7.30 am, you will receive additional payment for the hours worked at the back shift rate as detailed above. You will be paid at least National Minimum Wage for all hours worked in each pay period. If you are required to remain on authorised wakeful duties on a nightshift, you will receive a payment of £45.00 in addition to the standard night shift rate. You will only be paid for the time recorded on your time sheet….”[30]Under the heading “hours of work,” it is stated that, “Your hours of work for the care at home role are variable each week as rostered, to meet the needs of the home and our care at home service users, and to suit your availability. There is no guarantee of hours available. When your working day exceeds six hours you will be entitled to an unpaid break of 20 minutes. Your hours of work for the House Assistant role are those required to carry out your duties to the satisfaction of the society and as necessitated by the needs of the business and shall not normally be less than 22 a week, according to the published rota. You are entitled to a 60 minute break when you work for six continuous hours or more. In accordance with the rota, you will normally work not less than 3 backshifts and 2 night shifts over a three week period, although your total hours worked each week may be subject to variation”.[31]The second claimant commenced employment with the respondent as a house assistant on 23 March 2022. A contract of employment was issued to him on 9 January 2023. That included the same clause relating to “pay arrangements” as the first claimant.[32]Under “hours of work”, it stated, “Your hours of work are those required to carry out your duties to the satisfaction of the society and as necessitated by the needs of the business and shall not normally be less than 30 hours a week, according to the published rota. Day and back shifts include a 20 minute break and you are entitled to a 60 minute break when you work for six continuous hours or more. In accordance with the rota, you will normally work not less than 5 backshifts and 5 night shifts over a three week period, although your total hours worked each week may be subject to variation”.[33]The employee handbook, which was issued to the claimants, sets out the grievance procedure as follows: “Submit your formal written grievance to your line manager who will make every effort to hear your grievance within five working days….if you are not satisfied with the outcome of your meeting, tell the person who dealt with your grievance that you wish to take the matter further and intend to appeal against the outcome. Submit your formal written appeal to an un-involved manager or the society chairman within five days of receiving written confirmation of the grievance decision. Every effort will be made to hear your appeal within five working days….”[34]The respondent had a complicated pay arrangement whereby the respondent paid to the claimants each month a NMW uplift to ensure that all hours spent working were paid that the NMW. This arrangement was not set out in the claimant’s contracts, but it was explained to them when they received their first salary. The respondent would deduct an accommodation offset when the claimants worked two or more night shifts in a row, at the rate set by the Government, when the claimants required to stay overnight in accommodation provided by the respondent. That accommodation had sleeping facilities and an ensuite and was solely for their own use, with electricity and water provided, as well as a meal should they wish it. Although there was a medicine cupboard in the room, that would not be used by other staff while they were undertaking their sleep-in shift.[35]Rotas were drawn up over a three week period. In the house assistant role the first claimant would normally work one backshift and one night shift on a Friday (including sleep-in shift) in week 1; in week 2 a backshift on Tuesday and backshift and nightshift (including sleep-in shift) over the weekend; and in week 3 one backshift. She covered the carer role on an ad hoc basis.[36]The second claimant’s usual rota was backshift and night shift Monday and Saturday/Sunday week 1; backshift and night shift Friday week 2; and backshift and night shift Tuesday week 3.[37]At their interview and at induction, the claimants were asked to ensure that they were at work and ready to start at their contracted start time. Accordingly they were asked to attend work 15 minutes prior to their scheduled start time. When an incoming colleague taking over a shift from an outgoing colleague arrived early, outgoing employees would be entitled to leave early. This practice was followed by the claimants. There was no sanction for not attending early or for leaving early.[38]By letters dated 4 April 2022, the claimants were advised of an increase to their rate of pay of 5% with effect from 1 April 2022.[39]By letters dated 21 September 2022, the claimants were advised that a decision had been made to bring forward the annual April pay rise due to the cost of living and were awarded a pay increase of 6% effective from 1 October 2022.[40]By letter dated 3 April 2023, the claimants were advised of a further increase by another 3% from 1 April 2023.[41]On 27 February 2024, the second claimant e-mailed Nicola Brown, payroll admin officer, asking her to check their payslips because they believed there were hours missing for nighttime call outs.[42]On 28 February 2024, Nicola Brown advised that, “Hours are not missing, night time call out only gets paid if you have been up more than four hours as stated in your contract”.[43]The first claimant was absent from work from 21 February 2024 to 15 March 2024. By letter dated 12 March 2024 Ann Pickthall wrote to enquire about her current state of health and if anything could be done to facilitate her return to work, inviting her to welfare meeting. She noted that the most recent fit note (although not the two previous) indicated that the back pain arose from an injury at work, but no accident had been reported.[44]The welfare meeting took place on 15 March 2024 when the first claimant advised that her GP had confirmed that she was fit to return to work, but in the opinion of her physiotherapist she should not return to work on the care rota. Following discussion the claimant advised that she did not wish to undertake care shifts as a temporary adjustment for the time being, but that she could return to work and undertake house assistant duties. It was agreed that she would return to work on 18 March 2024 on a phased return as a reasonable adjustment to see how she managed. This arrangement was confirmed in a letter dated 10 April 2024.[45]It was also agreed, as a reasonable adjustment, that “wherever possible I will allocate you extra house assistant shifts. Please note such shifts will generally become available to cover periods of staff absence such as periods of holiday and sickness absence and are currently allocated across the staff team. Therefore I am unable to guarantee extra house assistant hours or specific shifts on a monthly basis. If you are allocated any extra shifts offered to you and unable to undertake them please advise asap so I can make alternative arrangements….as we discussed and agreed, we hope that you should be able to return to your normal working arrangements at some point in the coming months when you feel able namely to undertake a minimum of 22 hours per week in your role as House Assistant and to recommence your care at home duties on the basis of working variable hours. This phased return to work arrangement does not represent a permanent change to your terms and conditions. In the meantime, you will be paid at the applicable hourly rate for any hours worked”.[46]By letters dated 8 April 2024, the claimants were advised that their rate of pay was to be increased by 5% from 1 April 2024, so for house assistant and care at home the rate was £13.42 per hour and for the night shift/sleep over shift was a flat rate of £88.74.[47]On 17 July 2024, the following emails were exchanged between the second claimant and Nicola Brown: i. The second claimant asked her to check his last payslip because he believed his NMW correction and pension were wrongly calculated. ii. She replied advising having checked that the NMW correction was right but would double check. iv. She then advised that they had double checked and discussed with the board and were satisfied that the NMW requirements were met, stating that they were not legally required to pay NMW for sleeping hours but historically the board decided to pay an enhancement (NMW correction) to show appreciation of a good staff team. v. The second claimant then asked her to explain the difference between two payslips (which he attached) because they were for different amounts but the same hours, asserting that he still did not get NMW per hour. vi. She replied, “the difference from May and June is as accommodation is provided this also comes into the calculation of NMW correction. Meaning that £9.99 is deducted in the form of an accommodation off set (set by government). This could be taken off for every night shift but the board agreed only two or more shifts worked together. Therefore in May you didn’t do two shifts in a row but in June you did”. vii. The second claimant replied asserting that he still did not get minimum wage. viii. She replied confirming that he had been paid minimum wage and suggesting that she was happy to discuss face to face if still not clear.[48]By letter dated 28 October 2024, the claimants wrote to Ann Pickthall, submitting a collective formal grievance about pay and conditions, specifically concerning the application of the accommodation offset, the structure of sleep-in shift pay, rate of pay and holiday calculations. They stated that matters remained unaddressed despite attempting to resolve informally.[49]Under 1. Accommodation offset application, they stated, “We believe the accommodation offset currently being deducted from our pay during sleep-in shifts is not required. This deduction is applied even though: the employer is not providing accommodation as part of our employment package; there is no requirement in our rotas to reside in any specific accommodation as a condition of employment; the accommodation offset was not specified in our employment contracts and does not appear on our payslips. Resolution sought: we request that accommodation offset is no longer applied and reimbursement for all past deductions relating to this offset”.[50]Under 2. Sleep-in shift pay, they stated that the clause in their contracts relating to sleep in shifts “does not fairly compensate for the time spent available for work or responding to duties while on a sleep-in shift. Resolution sought: we request that sleep-in shift pay reflects our usual hourly rate from the time we begin active duties rather than after a four-hour period”.[51]Under 3. Holiday pay calculations, they stated, “Our employment contracts specify that holiday pay should be calculated based on an average of the last 52 weeks. However it appears that our holiday pay is instead being averaged over 12 weeks, which we believe is not in compliance with our contract or current legislation. ….Resolution sought: we request that holiday pay calculations reflect an average of our last 52 weeks of pay. Additionally we request back pay for any difference in holiday pay calculations since our employment commenced….”[52]By letter dated 1 November 2024 Ann Pickthall acknowledged receipt of the grievance, advising that a hearing chaired by Margaret Watson (Trustee) would take place on 8 November 2024, and that she would accompany her as witness and note-taker.[53]By email dated 4 November 2024, the second claimant confirmed that the claimants would attend the meeting, and that they wanted to discuss other payment issues, namely employment payment pension contribution; rate of pay; national minimum wage correction; and working hours throughout the nightshift.[54]During the hearing, Margaret Watson and Ann Pickthall found it difficult to get their point across because of repeated interruptions of the second claimant in particular.[55]By e-mail dated 12 November 2024, the second claimant was advised that the grievance policy stated that they would get a response within five working days, and that it was likely to take the full five days because of the complexity of the issues but they would be informed if it was to take longer. On Friday 15 November 2024 the claimants were advised that it was taking slightly longer to gather all the relevant information but they planned to reply by Monday.[56]By e-mail dated 18 November 2024, the outcome letter was attached along with notes from the meeting.[57]In relation to the accommodation offset, it was stated that “during the hearing you stated that this does not appear in your contract or payslip. I explained that this offset is part of the NMW correction which the Society has been paying all staff since 2017 when Statute was introduced stating staff should be paid NMW for sleepover shifts. However in 2021 the High Court over-ruled the previous legislation meaning paying for sleeping shifts was no longer required. The…Board of Trustees decided to continue to pay this although legally they were not required to do so. As they valued the staff team, they felt it would be unfair to stop this payment after 4 years. Staff were informed in writing about this at the time, however as you joined the Society after this date you didn’t receive this letter but were treated the same as all other staff and received this payment. Accommodation offset is not on your payslip as it is part of the NMW calculation and is recorded on your payslip as NMW correction”.[58]The letter continued, “The Society provides a room with en-suite facilities for staff to sleep in when on a 9 pm to 9 am shift, a meal is also provided for staff on this shift. HMRC guidance states that this offset could be taken off for every shift, however the Trustees decided only to apply it when staff work 2 consecutive days. As such I find this point of your grievance to be partially substantiated. As a result I will speak to payroll and ask that the offset calculation is added to the payslip, also a paper will be drawn up for all future employees explaining what the NMW accommodation offset is and how it is calculated”.[59]In regard to the assertion that they should be paid from the minute they were disturbed on a night shift, the outcome letter stated that, “It is a rare occurrence that staff are disturbed for long periods, however when there is a repeated disturbance each case is considered on an individual basis and recompensed accordingly. As such, I find this point of your grievance to be partially substantiated. As a result I will advise staff to record on their timesheet any time they are up during a nightshift, we will review this on a case by case basis and pay staff accordingly”.[60]The holiday pay calculation complaint was found to be substantiated, and holiday pay for all staff was to be recalculated and monies owed paid in full.[61]The claimants were also advised of their right to appeal to the chairman, Alex Cook, within five working days. The claimants appealed all three issues by letter dated 22 November 2024.[62]By letter dated 3 December 2024, Alex Cook stated that “due to the atmosphere during the initial grievance hearing, we have decided not to engage in a verbal conversation at this time. However I have thoroughly reviewed the minutes and outcome letter from your grievance hearing, along with the grievance appeal itself.” He then set out findings regarding the issues raised, confirming that the grievance appeal was not upheld and the decision made by Margaret Watson to reject the grievance was wholly appropriate in the circumstances.[63]By letter dated 29 January 2025, the claimants were separately advised that payment for outstanding holiday pay was to be made on 31 January 2025, and a copy of all the calculations was enclosed as requested.[64]By letter dated 27 March 2025, the claimants were advised of new rates of pay and of a decision to increase rates of pay by 5% from 1 April 2025, meaning that the hourly rate of pay for both house assistant and care at home roles were £14.09. The letter continued, “As you are aware the current sleepover rate is £88.74 which is enhanced by the NMW calculation you will see on your pay slip. The calculation is somewhat complex and very time consuming for the administration team and therefore we have been looking at ways that we could change how we pay for sleepover shifts. Despite there being no legal obligation to pay this amount the Trustees wish to continue to make this payment and also to ensure that staff would not be worse off without using the NMW calculation. We therefore propose that from 1st April 2025 the sleep over rate will be fixed at £122.50 per shift. The breakdown of this payment is as follows – 3 working hours @£14.09 = £42.27; sleeping hours payment £80.23 Total £122.50”. All staff were asked to advise whether or not they agreed and if not all agreed, they would go with the majority decision.[65]This meant that henceforth there would be no NMW uplift, and no deduction for accommodation offset. The claimants confirmed agreement by signing the letter on 14 April 2025.[66]By letter dated 13 May 2025, the claimant advised of her resignation. Deliberations and decisions[67]In this case the claimants make claims relating to pay and conditions, and specifically certain alleged underpayments, in breach of the provisions of the Employment Rights Act 1996 (ERA) in particular. The first claimant, who resigned on 13 May 2025 also makes claims for breach of contract. The second claimant accepted that since he still works for the respondent he is not entitled to make a claim for breach of contract.[68]The claimants also made a claim for holiday pay and had set out sums they believed were due in their updated schedules of loss. The claimants were not able to state that these were wrong, and since they have now been paid, I concluded that in respect of sums sought there is no valid claim for holiday pay. I confirmed to the claimants that should I make any award for unlawful deductions from wages then the relevant holiday pay on any additional hours worked would be awarded.[69]As noted above, the claimants are not pursuing any claim in respect of the assertion that the number of shifts they have been offered has been reduced since they lodged the grievance. There is no apparent basis for such a claim, except to the extent that the first claimant argues that the number of shifts has reduced to below 22 hours per week, and she argues that she is contractually entitled to a minimum of 22 hours per week.[70]The key provision is s.13 ERA which states that an employer shall not make a deduction from wages of a worker unless the deduction is authorised by a statutory provision or a relevant provision of the worker’s contract or with the worker’s consent.[71]Section 13(3) ERA states that a worker must establish that thy have been paid less than the amount that is “properly payable”. The onus of proof is therefore on the employee.[72]I now consider each of the claimants’ claims in turn. Sleep-in shift/wake up arrangement[73]Under the National Minimum Wage Regulations 2015, workers will be treated as working when they are available at or near a place of work for the purpose of doing work and are required to be available for such work, unless they are at home (regs 27(1)(b) and 32(1)).[74]Where the worker is entitled to sleep at or near a place of work when on call, and is provided with suitable facilities for sleeping, only time when the worker is awake for the purpose of working will be treated as working time (regs 27(2) and 32(2)).[75]Royal Mencap Society v Tomlinson-Blake 2021 ICR 758 is a decision of the Supreme Court about a careworker who was seeking the national minimum wage for a sleep-in shift between 10 pm and 7 am. No specific tasks were allocated, but the careworker required to remain at the residency and keep a ‘listening ear’ during the night, and to intervene where necessary. While intervention was required as appropriate, it was infrequent. The careworker received a fixed rate or allowance for the nine hour sleep in shift.[76]The Supreme Court decided that the careworker was not entitled to the NMW in respect of the entirety of the sleep-in shifts: they were only entitled to be paid the NMW for the time when they were called on to be awake for the purposes of working. It was noted that under regulations 27(2) and 32(2) the worker must be ‘awake for the purposes of working’ in order to be treated as ‘available for work’ and therefore entitled to the NMW. This means that it is necessary to look at the arrangements between the employer and the worker to see what the worker is required to do when not asleep during the hours of the sleep-in shift. If the only requirement is to respond to emergency calls, the worker’s time in those hours is not included in the NMW calculation unless the worker actually answers an emergency call. This is so no matter how many times the sleep-in worker is (contrary to expectation) woken to answer emergency calls — only the period for which the worker is actually awake for the purpose of working is included.[77]In this case, the claimants claim for hours which they state that they worked between 10.30 pm and 7.30 am. Such hours are not recorded and so are an estimate as set out in the updated schedule of loss.[78]The first claimant produced a record of disturbed nights since October 2021.These were not of course intimated to the respondent, because the respondent only paid additional pay for any disturbance over four hours. The first claimant in evidence said that there were two occasions since starting work there that she had been up assisting residents (waiting for an ambulance) for more than four hours. As I understand it, she got paid for the hours over four that she worked on these occasions. The second claimant advised that since October 2021, he had been required to work through the night twice for two hours.[79]The claimants were of the view that they should be paid for each minute that they were working when they had to get up to assist residents or undertake work while on the sleep-in phase of the shift.[80]The respondent argues that whatever the position, these claims are time barred, because the last disturbed night the first claimant refers to was on 26 December 2023, and the last claim the second claimant refers to was 26 October 2024.[81]However, the respondent argues in any event that no sums are due. The respondent operates a payment scheme for each sleeping in shift. This had arisen historically, and was partly in response to decisions of the Court of Appeal and Supreme Court in regard to the rate of pay for sleep in or on call hours which had necessitated changes to the payment arrangement.[82]The arrangement was rather complicated as a result, and while it had been explained to all staff in 2017, the claimants did not get this explained to them fully because they started after that. Ms Pickthall said in evidence that when the claimants started they shadowed others on shift and so the pay arrangement should have been apparent.[83]Accordingly, the claimants are paid the NMW for the hours that they are actually working when on nightshift, namely from 9 to 10.30 and 7.30 to 9 am, that is three hours. For the period between 10.30 and 7.30, the claimants were essentially paid for four hours, that is as if they worked four hours. If they were to work more than four hours during a sleep in shift, they would be paid at the national minimum wage in addition, and I understand that is what happened. This is the contractual agreement reached which could be equated to an allowance for sleep-in shifts, equivalent to four hours paid at NMW.[84]For the hours when they are on work premises but sleeping, which in this case is between 10.30 and 7.30, the respondent is not obliged to pay their staff the national minimum wage, or any wage at all, unless they are actually working. The respondent would be required to pay only for the time that they were working (not sleeping and just available for work). So when they were called upon to attend to a resident or the like, they were entitled to be paid at the national minimum wage when the hours which were worked exceeded the four hours otherwise they were paid.[85]These were essentially the same circumstances of the careworker in the Royal Mencap case.[86]I did not accept that there was no reference to the arrangement regarding payment for more than four hours, which was clearly set out in the claimant’s contracts. Further, it is also apparent, from reading the relevant clause of the contract, that three hours, from 9 to 10.30 pm and from 7.30 to 9 am will be paid at basic hourly rates.[87]Further, the fact that the second claimant had hours deducted when he left work early on one occasion on 13 March 2023 does not prove that these hours were not paid at basic rates in the normal course.[88]In any event, based on the current law, derived from the relevant legislation (The National Minimum Wage Regulations as interpreted by the Supreme Court), the claimants have not been underpaid for sleep-in shifts and are not entitled to any further payment in that regard, and accordingly those claims are dismissed. Accommodation offset[89]Regulation 14(1) of the National Minimum Wage Regulations 2015 states that “the amount of any deduction the employer is entitled to make….as respects the provision of living accommodation…is to be treated as a reduction to the extent that it exceeds the amount determined in accordance with regulation 16”.[90]Accordingly an employer who provides accommodation to workers is entitled to include, towards the calculation of the NMW, a cost for providing the accommodation. This is known as the accommodation offset.[91]The NMW Regulations do not define ‘living accommodation’. This is to be found in the BEIS guidance which states that an employer ‘has to provide the worker with free access to accommodation suitable for day to day living, such as providing access to a bathroom and suitable sleeping facilities’. These facilities, which must be within the accommodation itself or reasonably close by, may be shared with other residents but must afford some degree of privacy.[92]Regulation 16(1) provides that the maximum amount that can be taken into account where living accommodation is provided is the amount resulting from multiplying the number of days in the pay reference period for which accommodation was provided by a fixed daily rate, which, from 1 April 2025, is £10.66. For 2024, the daily accommodation offset rate was £9.99, for 2023, £9.10, for 2022 £8.70 and for 2021 it was £8.36. The respondent is entitled to charge an set off set for any 24 hour period when the claimant is using the living accommodation.[93]Where an employer does not charge rent for using the accommodation provided, it is entitled to deduct the accommodation offset from a worker’s pay without this having the effect of reducing the worker’s NMW pay, but this may mean that a worker’s pay can lawfully be less than the NMW.[94]In a decision of the Employment Appeal Tribunal, Eastern Eye (Plymouth) Ltd v Hassan and anor EAT 0383/14 the EAT confirmed that there is no need for the worker to have specifically consented to the deduction, or for the employer to have specifically notified the worker in advance of the reason for the deduction. That is because the deduction is treated for the purposes of s.13 ERA as authorised by statute and not an unlawful deduction from wages.[95]The claimants seek repayment of all past deductions relating to this off-set. Again these are an estimate, the claimant stating in the schedule of loss that, “I don’t know exactly how much I was charged each year and what amount as I didn’t know that company deduct offset accommodation from my wages therefore my calculations may not be accurate”.[96]However, the claimants were provided with living accommodation which had a separate sleeping room and ensuite bathroom, and although there was some evidence about drugs being kept there, there were no other staff on duty during the night so these would not be accessed by anyone else. In any event, I accept that living accommodation as required was being provided.[97]In this case, the employer had a complicated arrangement combining a NMW uplift with an accommodation off-set at the rates set by the government. Notwithstanding, the respondent was entitled to make the accommodation offset in the circumstances of this case and accordingly there is no unlawful deduction, because such a deduction is authorised by statute.[98]The fact that the claimants effectively derived no benefit from a pay increase (in 2022) because of the operation of this arrangement or because of the timing of the pay increase, does not entitle the claimants to argue that there has been an unlawful deduction from wages. Although the arrangement was complicated and there was a lack of clarity about its operation, and it is unfortunate that the respondent did not take the time to explain it to the claimants, given that it was authorised by statute, there is no scope for the claimants’ complaint about its operation to succeed.[99]Accordingly, the claimants’ claim that there has been an unlawful deduction from wages in respect of the accommodation offset is not well-founded and is dismissed. Payment for 15 minutes handover at start of each shift[100]Although this was not a matter which was raised at the grievance or prior to the initiating of this claim through ACAS and to the Employment Tribunal, the claimants now seek payment for what they allege is time worked at the start of their shifts (which they are entitled to do, even if this has not been raised before). The sums sought are set out in the claimants’ updated schedules of loss.[101]The first claimant gave evidence that there was an expectation that staff would go in at 2.45 for a 3 pm start. This was to do a handover and to get the pager from the outgoing colleague. She recalls this being raised at interview. She states that she would always arrive early for her shift, often more than 15 minutes early.[102]She agreed that if you arrived prior to 3 pm, then sometimes the outgoing colleague would leave prior 3 pm. Sometimes she would need to stay on after 9 am if the colleague who was taking over did not arrive on time. Although that was the practice, she pointed out that this was not in her contract.[103]The second claimant recalled a meeting when it was made clear that they had to come in 15 minutes early. That decision was made following a discussion about whether it should be more. His evidence was that this was for the purpose of transferring data, information, messages and the pager. He said that he would change, sign the firebook, and go into the kitchen to receive the information. His evidence was that colleagues would leave prior to the end of their shift if there were no issues to discuss, but otherwise would stay on to discuss any issues.[104]I heard evidence from Ms Pickthall to the effect that staff are asked at interview and at induction to arrive 15 minutes before shift as a courtesy to other staff to allow time to get changed and to advise of any particular issue which arose on the shift which require to be communicated. Such handovers are very informal and to supplement the system which is that any health issues or other issues with residents are recorded in a communications folder in the kitchen which staff are encouraged to read at the start of their shift. In addition there is an electronic group chat, where residents are referenced by a code. Although staff are encouraged to arrive early for their shifts as a courtesy to the outgoing staff, they are permitted to leave early if there are no issues to be communicated. Leaving early is a standard, permitted practice and no deductions are or would be made for that. Further, no action would be taken against any worker who did not arrive early.[105]I have made findings in fact that there is a practice of arriving at the work premises early, but that is in order to ensure that staff are ready to start at the start of their shift and to allow those they are taking over from to leave when their shift concludes. I took account of the fact that no action would be taken against any worker who did not arrive early, and that staff are permitted to leave early where their replacement has arrived and is ready for work.[106]The respondent relies on the fact that the burden of proof is on the claimant to show any unlawful deduction from wages, and that, as the claimants submitted, they could have produced the firebook to show the hours they had come in and left since they are required to sign in and sign out. No request was made for the firebook to be lodged, but it would have been the best evidence of the claimants’ hours and could have proved the claimants’ claim that they arrived 15 minutes early for every shift.[107]The respondent argues that the early arrival and early departure is “custom and practice” and that this was accepted by the claimants, confirmed by the fact that they did not raise this issue in their grievance or their grievance appeal.[108]The claimants relied on the Working Time Regulations 1998, and in particular section 2 which defines working time as “any period during which he is working, at his employer’s disposal and carrying out his activities or duties”.[109]I accept that the burden of proof is on the claimants and that they have failed to provide evidence that they arrived and commenced work each day 15 minutes before their scheduled start time, and that they were carrying out duties during that time. Further, their oral evidence confirms that there is a practice of arriving early to relieve the outgoing worker and of leaving early if appropriate in such circumstances, and that there would be no sanctions for either practice.[110]Accordingly, I conclude that there has no requirement to pay the claimants for 15 minutes prior to the commencement of each shift, and therefore no unlawful deduction from wages. Breach of contract – first claimant only[111]The first claimant claims that she was entitled to be paid a minimum of 22 hours per week in terms of her contract, and sets out in her schedule of loss the sums she says she is due. This is therefore a claim for sums due for the breach of her contractual terms.[112]The respondent submitted that the claimant’s contract of employment did not guarantee 22 hours per week in the house assistant role, and that the claimant did not have a set rota, and her hours varied, depending on the needs of the business.[113]Further, although the claimant had set out sums she claimed were due in the schedule of loss, the respondent relied on Coors Brewers Ltd v Addock 2007 IRLR 440 to argue that no sums were due in any event because the amount due was not capable of quantification. This was not least because the claimant accepted that the sums due would depend on whether the claimant was rota’d for night shifts or back shifts.[114]Under the Employment Tribunals (Extension of Jurisdiction) (Scotland) Order 1994, section 3, it is provided that proceedings may be brought before an employment tribunal for the recovery of damages or other sums if the claim is one for damages for breach of contract and the claim arises or is outstanding on the termination of the employee’s employment.[115]This claim accordingly turns on the construction of the claimant’s contract. The focus is on payment for the house assistant role after the claimant returned to work on a phased return. Prior to that she had always worked at least 22 hours per week, including the ad hoc care support role.[116]The first claimant’s contract of employment states that….“Your hours of work for the House Assistant role are those required to carry out your duties to the satisfaction of the society and as necessitated by the needs of the business and shall not normally be less than 22 a week, according to the published rota. You are entitled to a 60 minute break when you work for six continuous hours or more. In accordance with the rota, you will normally work not less than 3 backshifts and 2 night shifts over a three week period, although your total hours worked each week may be subject to variation”.[117]It is important to note reference to the fact that the hours would not normally be less than 22 per week, and there is no reference there to any guaranteed hours.[118]The position changed when the claimant was no longer able to carry out the ad hoc care shifts because of her back injury. The matter was discussed at the welfare meeting on 15 March 2024. A phased return was proposed taking account of the claimant’s back injury and the fact that it had been recommended that she should not do the home care shifts. She was told that she would be allocated extra house assistant shifts wherever possible, which would generally be to cover holiday and sickness absence which were at that time allocated across the staff team, so could not be guaranteed. The respondent confirmed that she would be paid at the applicable hourly rate for any hours worked.[119]The position was set out in clear terms in the contract. There was no guaranteed minimum number of hours. The respondent was doing what they could in the circumstances to offer extra hours but had to take account of the hours and rotas of other staff, understandably.[120]The claimant expressed concern about the removal of regular shifts and changes to her shifts. She complained about losing a backshift she was initially scheduled to work but instead had to attend training (which meant she had to take a day off other work to be able to attend the training). She accepted that there were certain duties she could not undertake due to her back injury, although she returned to house assistant duties, but noted the change from November 2024, so she suggested the change was not because of her back injury.[121]Whatever changes were made to her regular shifts, whether the result of her back injury or because she was no longer doing home care shifts, the fact is that the claimant had no contractual right to regular shifts or indeed to any shifts at all. Despite that, I accepted that the respondent did what they could to try to give her additional shifts while accommodating other staff. Further, there was no obligation on the respondent to make arrangements for other staff to cover the duties which the first claimant could no longer do, and there certainly should have been no expectation that Ms Pickthall would cover such duties.[122]However I have in any event concluded that there was no breach of contract and no sums due in respect of breach of contract. The first claimant’s claim for breach of contract is therefore dismissed. Holiday pay[123]Since no sums have been awarded as a result of this claim, no further sums are due in respect of holiday pay beyond those already claimed which have been paid. Accordingly, the claimants’ claim for unpaid holiday pay is dismissed. Itemised pay statements[124]Section 8 of the ERA 1996 states that a worker has the right to receive a written itemised pay statement, including gross and net wages and any deductions and at s.8(2)(d) “where different parts of the net amount are paid in different ways, the amount and method of payment of each part payment” and at s.8(2)(e) “where the amount varies by reference to time worked, the total number of hours….either as a single aggregate figure or separate figures for different types or work or rates of pay”.[125]The claimants did receive itemised pay statements each month. These included gross and net wages and deductions for tax, national insurance and pension. They included entries for dayshift/backshift, for night shift, holiday pay, NMW correction and care at home.[126]The claimants complained in particular about the fact that there was no break down of the night shift payments, and no specification that three hours were paid at beginning and end of the shift were at basic rate and with the hours in between paid an allowance equivalent to four hours pay.[127]While I accept that was not spelled out in the pay slips, I take the view that s.8(2)(e) allows for such payment to be entered as a single aggregate figure, as the respondent has chosen to do in this case.[128]As noted above, there is no requirement to include the accommodation offset as a deduction because it is authorised by statute.[129]Accordingly I find that there is no breach of the requirement to provide itemised pay statements, and such claim is also dismissed. Time bar[130]Since no sums have been found to be due, no consideration requires to be given to the question of time bar. Acas Uplift[131]The claimants set out their concerns about how the grievance had been dealt with, seeking an uplift in the award based on the respondent’s alleged failures. However while I accept that an Acas uplift would have been a relevant claim, since no sums have been awarded, no uplift requires to be considered. 23 October 2025