The Round-Up: Minimum Wage, Article 6 and Housing
16 May 2017
Three women, including a mother and her daughter, have been charged with conspiracy and attempt in the first all-female terror plot in the UK. This accolade means it is sure to be feverishly anticipated by the press when the charges reach the Old Bailey on May 19th.
The Children’s Society is looking for evidence on the impact of LASPO (2012) on unaccompanied migrant children, and are calling for the participation of legal practitioners in a survey which can be found here. Evidence would be used in the pending review of LASPO and in a strategic litigation case intended by the Children’s Society to bring unaccompanied migrant children under the auspices of legal aid. For more information contact Dr Helen Connolly at email@example.com or Richard Crellin, Policy Manager at the Children’s Society at firstname.lastname@example.org.
The Guardian reports that Cage, the campaign group, plans to challenge the Home Office’s use of anti-terrorism legislation to demand social media passwords on the border, after its Director was detained at Heathrow for refusing to do so.
And finally, the Bar Council have released their manifesto for justice for 2017, which you can read in full here.
IN THE DOMESTIC COURTS
In the Employment Appeal Tribunal, Royal Mencap Society v Tomlinson-Blake has ruled that care workers may need to be paid national minimum wage as an average for all hours worked, including hours worked on shift sleeping over at someone’s home.
WHY WEREN’T THEY ALREADY DOING THAT?
It has been standard practice in the care industry to pay a flat rate for overnight shifts, and the regular (higher) rate for the hours in which the worker is awake and dealing with anything that comes up during the night. So the claimant in the present case earned only £29.05 for a nine hour shift.
This appeared to be in line with the National Minimum Wage Regulations 2015, specifically s.30(2) which provides that the relevant hours are “hours when the worker is awake for the purposes of working, even if a worker is required to sleep at or near a place of work and the employer provides suitable facilities for sleeping.” The material question in the present case was the proper construction of this provision.
The Employment Appeals Tribunal didn’t think it was possible or desirable to draw a binary line between ‘working’ and being ‘on call’ or available to work. This would lead to illogical results, with some examples including a night-watchman or other services in which the core time worked included time sleeping, and would not qualify as hours worked for the purposes of national minimum wage. In fact, there was no one decisive factor that would identify whether a worker was actually working for the purposes of the Regulations.
The elusiveness of any one test means that the law in this area remains unclear. In the present case, Mencap were bound by a regulatory obligation to have someone on the premises, and the claimant had the real (though infrequent) need to be present and alert to respond to incidents during the night. The court found that although she was allowed to sleep, she had a continuing obligation to be there and exercising her professional judgment. For these reasons, she had to be seen as someone actually working, rather than someone merely available to work.
WHY IS THIS A PROBLEM?
Because, according to John Cowman (Director of Services for Mencap), “if sleep-ins have to be paid at the minimum wage the sector is faced with a real and potentially overwhelming funding crisis that will affect the well-being of hundreds of thousands of disabled people who rely on the personal support provided by organisations like Mencap to be able to live a fulfilled and independent life.”
The ruling means not only that providers may need to pay the minimum wage for sleep-ins (lack of clarity on that provision notwithstanding), but that they may be hit with backdated claims from workers. Cowman says the estimated cost of sleep-ins to the sector is £800 million over three years, which is in addition to the £2 billion the Government pledged to social care in the Budget. Essentially, though this is a win for social care workers, this is a bill the chronically underfunded industry says it simply cannot afford. Cowman calls for ‘clarity on what the law is telling us to do’ as well as proper funding to prevent grave risk for the sector and the people who rely on it.
ELSEWHERE IN THE COURTS
See David Hart QC’s in depth analysis of Poshteh v Royal Borough of Kensington and Chelsea  UKSC 2015/0219, in which the Supreme Court ruled again on the question of the right of the homeless to suitable council accommodation, the extent to which Article 6 is engaged by housing decisions and the proper test to be applied.
Issues of jurisdiction and anonymity, as well as the question of whether a foetus is ‘the body of a deceased person’, became a problem for the Coroner in R (on the application of T) v. HM Senior Coroner for West Yorkshire  EWCA 187 (Civ), 28 April 2017, when a young woman walked into a hospital with the body of a baby in a shoebox. Read a full analysis of the case here.
Free Movement reports on another successful claim for damages for unlawful detention, in R (Ademiluyi) v SSHD  EWHC 935 (Admin).
IN THE ECtHR
Simeonovi v Bulgaria  no. 21980/04
Simeonov was arrested after being convicted of armed robbery and homicide in Bulgaria in 1999.
He asserted in the Grand Chamber that his Article 6 right had been infringed when he was not provided access to a lawyer for the first three days in police custody, despite having made multiple requests to consult with one and despite being entitled to legal assistance under domestic law. The order for the applicant’s detention, which contained notification of his right to legal assistance, had not been signed by him. He alleged that he had been questioned during that time and that the lack of written corroboration about that questioning suggested that he was induced by investigators to confess. The Government submitted that there was no requirement under domestic law to record a detainee’s wish to take up or waive the right to legal consultation; further, that there was no evidence that the applicant in the present case had made such requests or had been interrogated at all.
Counsel for the applicant in the Grand Chamber submitted that the right to legal assistance provided for in Article 6.3(c) was autonomous from the right to a fair trial in Article 6.1, and that a violation of that autonomous right was dependent on whether there were any reasons justifying the restriction of his access to a lawyer while in police custody. If there were not compelling reasons, the fact that the conviction had not been exclusively based on the applicant’s confession and the fact that he had had the effective assistance of one or more lawyers for the rest of the criminal proceedings were of no consequence in relation to Article 6.3(c).
It was found in the Chamber that the conditions of the applicant’s imprisonment had amounted to a violation of his Article 3 right to freedom from inhuman or degrading treatment. In particular, the Court had noted that the general dilapidation of the Sofia Prison, the poor sanitation and excessive isolation far exceeded the level of suffering inherent in a prison sentence. On appeal, the Government of Bulgaria made no submissions on this point, but pointed to a program of prison reform being implemented. Accordingly there was a violation of Article 3.
The court affirmed that the right to a fair trial under Articles 6.1 and 6.3(c) apply to a person subject to a criminal charge, at the point from which they are either notified of the charge against them or they become affected by the actions of authorities because of the suspicions against them.
The right to legal assistance under Article 6.3(c) contributes to a protection against miscarriage of justice. It cannot therefore be seen as autonomous from the other provisions in Article 6 but must be read and interpreted in the light of the broader right to fair criminal proceedings. Though one incident or aspect of the proceedings might be decisive, it should be looked at in the context of the proceedings as a whole rather than in isolation.
As for the right to waive legal assistance, the court said that it is in neither the letter or spirit of Article 6 to allow a person to waive their own right to fair proceedings, and that even if they had done so the waiver would need to be clear and informed. Furthermore it is essential that the applicant is informed of his right to legal assistance in order to fully take advantage of it.
The right to legal advice during the investigation can on occasion be temporarily restricted, but only where the Government demonstrates ‘compelling reasons’ for doing so. The absence of compelling reasons does not necessarily point to a violation, but will weigh heavily in balancing the overall fairness of the process.
THE PRESENT CASE
The difficulty for the applicant was one of the facts: the parties simply disagreed on whether or not he had requested a lawyer in the first three days of his detention in 1999, and in the lack of documentation either way, years later, the Grand Chamber was in no position to determine that question. However, because the order for detention hadn’t been signed by the applicant, it could be assumed that he hadn’t seen it, or the notification of his right to a lawyer that it contained. Even supposing that he hadn’t requested access to lawyer, then, he couldn’t be found to have waived his right to assistance, because he had never properly received it. This amounted to a restriction of his right under Article 6.3(c), in an absence of compelling reasons asserted by the Government.
However, with regard to the overall fairness of proceedings against the applicant, it was found that sufficient protection had been given beyond this restriction. The following facts were pertinent: the applicant’s later voluntary confession, after several interviews with lawyers; the absence of a causal link between the applicant’s lack of legal assistance for those three days and his later confession and conviction; and the applicant’s active participation in all later stages of proceedings, which were without fault.
Therefore there was no violation of Article 6.1 or 6.3(c).
By Sarah Jane Ewart
This is all very well and mostly confirms what I thought the law was….and I hate to hijack this for my purposes….but I’m a white male born in the UK….am I not entitled to a home, right to work, right to a life either….?
Biggest problem I have is one of papers. I have no ID, so can’t get a bank account and it’s illegal even for a solicitor to even speak to me. I have been in this situation for over 11 years now…so any chance of a career also long gone…..all I need is papers and I’m probably still just about capable to work the rest out….
if anybody can help jakemaverick911 gmail dot com
and I am very happy to plaster that email address far and wide…..it’s not as if my enemies don’t have access to that anyway!
RE: the ‘Royal Mencap v Tomlinson-Blake’ Employment AppealsCourt decision:
Hello, please note that the national minimum wage law is 17 years old. Perhaps, when written, it was unclear about whether ‘sleep ins’ met the legal definition of ‘Time Work’ but It has since been clarified. It is now so specific on pay for ‘sleep ins’ that the government’s own Department for Business, Innovation and Skills (BIS) guidance document ‘Calculating the Minimum Wage’ published on 22/4/13, includes the following direct quote:-
Example 1 – where the minimum wage is likely to apply.
A person works in a care home and is required to work overnight shifts where they sleep on the premises. The person’s employer is required by statute to have someone on premises for health and safety purposes. The person would be disciplined if they left
the premises at any stage during the night.
It is likely that the person would be considered to be ‘working’ for the whole of the overnight shift even when they are sleeping.
Therefore organisations paying sleep in staff below the minimum wage (dependant on responsibilities) should have reassessed staff’s pay AT LEAST 4 YEARS AGO, then should have approached local authorities, who in turn should have approached government with a legal argument for more funding.
This has been known about for years by organisations, local authorities and government, but ignored because this form of modern slavery (an average of £3.23 per hour wage?) affects so many staff. If the people being paid illegally were people with disabilities who are being supported, the country would quite rightly be up in arms about it.
The sleepover case mentioned has already been through 2 courts (the employment tribunal, and employment appeals tribunal) and is heading to a 3rd court for ‘clarification’, though quite what the motive is for claiming the court decisions and the law appear ‘unclear’ is up for interesting debate. Also, despite misquotes in the Guardian newspaper, the decisions are directly from the courts: HMRC have not been involved in this case yet. (though I suspect they will be very interested the outcome)
Now is the time to take direct action and raise these issues through the courts, therefore ultimately forcing the government to put more money into health and social care, and recognising the dedication and hard work of often undervalued care staff.
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