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EAT Considered Whether Employees Were Entitled to the National Minimum Wage Whilst on Call From Evening to Morning

In Frudd v Partington Group Ltd UKEAT/0240/18/OO, the Employment Appeal Tribunal (‘EAT’) determined whether workers who were on call from evening to morning did “time work” under the National Minimum Wage legislation entitling them to the National Minimum Wage (“NMW”).

The Claimants were husband and wife and worked for their employer (who owns and runs a caravan site) together as a warden/receptionist team provided with and expected to live in a caravan on site. On either two or three days each week, the Claimants were required to be on call after their shifts finished. From the end of the shift until 10pm the Claimants were not entitled to any payment (the “evening period”) whilst on call and from 10pm until 7am they were entitled to payment for call outs (the “night period”).

The Claimants argued that the whole of the time when they were on call was time work for the purposes of NMW as it amounted to actual work. The sleep-in exception in the Mencap case did not apply because they were not on a sleep-in.

The EAT upheld the original Tribunal’s finding that the Claimants were working on time work during the evening period and as such they were entitled to the NMW during this period. The Tribunal found that the Claimants were expected to undertake the following duties during the evening period as part of their work; showing round prospective customers, welcoming late arrivals, giving keys to visitors who were subletting caravans, conducting an evening check if security guards were not present, dealing with incidents of noise or unruly behaviour, responding to alarm calls and on one occasion parking a tractor across the gates until potential trespassers had moved on. It was found that these duties had a marked effect on the Claimants’ leisure time in the evenings and that they were not merely waiting to work, they were working.

In contrast, the EAT upheld the original Tribunal’s finding that the Claimants were not working on time work during the night period and as such were not entitled to the NMW during this period. It was upheld that during this period they were not required to carry out the work detailed above unless they were called out for an emergency and if they were called out for an emergency they were paid. Therefore, the Claimants were merely on standby to work and were not working on time work unless called out.

This decision illustrates that where a worker is actually working they will be entitled to the NMW even if this work is labelled as being “on call”. As such, the Tribunal will look beyond the labels an employer gives to the type of work undertaken.

This bulletin is for general guidance only and should not be used for any other purpose. It does not constitute, and should not be relied upon as legal advice.

JMW Solicitors is a Limited Liability Partnership.