Adrian Berry KC, instructed by Hempsons, represented the successful appellant, Creative Support Limited, in a Civil Penalty appeal against the Home Secretary.
The Court allowed the appeal against a penalty imposed, in respect of a Skilled Worker said to be working in breach of the maximum of 20 hours ‘supplementary employment’ by ‘sleeping in’. This was in order to provide waking care if the need arose, at the place where a vulnerable adult lived.
The appellant was a charity contracting with local authorities and the NHS to enable them to fulfil their statutory duties to provide care and support to vulnerable adults in homes. The employee was a Senior Health Care assistant who lawfully took supplementary employment with the appellant by a contract that stipulated a maximum number of 20 hours a week.
As is common in the provision of such care, the employee was required to work her hours and also to ‘sleep in’ twice a week in order to be present, in case there was a need to wake and provide care in the night. The Home Office decided that the time spent asleep was time working, such that the total number of hours worked each week exceeded 20 hours. It imposed a penalty on the employer under the Immigration, Asylum and Nationality Act 2006.
The appeal was allowed on the basis that the sleep-in hours did not count as hours of employment under the contract between the appellant and the employer and, if necessary, as a matter of public policy under the 2006 Act Civil Penalty regime. Therefore, the appellant was not liable.
Had the Home Office succeeded, there would have been wide implications for the Health and Social Care sector. ‘Sleep in’ shifts are necessary so that carers can perform care duties at night which, in turn, allows the local authorities and the NHS to meet their obligations to people in need of care. Many employees who provide such care are sponsored skilled workers, filling a need that cannot easily be met through other means.
Additionally, if successful, all employers using sponsored skilled workers to provide care where sleep-in shifts were required would have been at risk of having civil penalties imposed. They may have had to dismiss such staff, and they may have been left unable to provide necessary care to vulnerable adults.
Adrian Berry KC
Adrian Berry KC is a member of the Garden Court Business Immigration Team. He acts in civil penalty appeals by employers and also those subject to carriers’ liability penalties as sole counsel and also as leading counsel.
For enquiries, please get in touch with his clerks at immigrationclerks@gclaw.co.uk
