Threequent updates – Zero hours premium, psychometric testing and sleeping at work

Zero hours premium

Businesses employing workers on zero-hours contracts could be forced to pay a premium rate for short-notice work. Matthew Taylor, a Chief Executive of RSA, was appointed by Theresa May last October to review employment practices in the light of concerns about the precarious nature of work, particularly in the gig economy.

The Taylor review suggests employers may have to pay employees an increased wage, above the national minimum wage, if they are called into work on short notice. The aim is to encourage employers to guarantee more hours in advance and give their employees more certainty around their working time.

Psychometric testing

Employers should be careful about ensuring they make appropriate adjustments to the format of recruitment assessments for disabled applicants. This is due to the Employment Appeal Tribunal’s (EAT) recent decision in Government Legal Service v Brookes.

This case concerned Ms Brookes, who applied for the position as a trainee solicitor with the Government Legal Service (GLS). As part of their application process GLS require applications to complete a situation judgement test. Ms Brookes suffered from Asperger’s syndrome and asked GLS if she was able to submit her answers in short narrative form instead of multiple choice. Her request was denied and Ms Brookes failed to make the pass mark for the test and therefore did not progress to the next stage of the process.The EAT accepted Ms Brookes’ condition affected her ability to complete the multiple choice test and GLS should have adapted the test for her. The EAT further held that GLS had committed discrimination by failing to make reasonable adjustments. This case highlights the importance to employers of ensuring they are able to offer suitable alternative formats if they choose to use such tests in their recruitment process.

Sleeping at work

The EAT has decided that workers required to sleep in at a service user’s house are entitled to be paid the national living wage for all hours worked, including time spent sleeping (Focus Agency Care v Roberts). It was found that the onus was constantly on the worker to use her professional judgement to determine if she needed to intervene and therefore she continued to be entitled to receive wages.

However, the EAT’s decision is far from clear cut and emphasis is placed on the facts of the individual case. This therefore suggests that this approach will not be applied across the board and each circumstance must be assessed on a fact basis. In particular the EAT disapproved of the approach where a worker is working by merely being present at the premises or where a worker is provided with accommodation and is simply “on-call”.