The Court of Appeal has confirmed that merely being present in a house at the employer’s property does not of itself necessarily entitle an employee to the National Minimum Wage (NMW) for the whole shift.
Mr S worked at a residential care home as an “on-call night care assistant”. He was required to be at the care home from 10.00pm until 7.00am and was able to sleep during those hours in his own room called “The Studio”.
However, he was required to respond to any requests for assistance by the night care worker on duty at the home.
Mr S conceded that in practice, he was very rarely asked to assist the night care worker.
Mr S was paid £90 per week and given free accommodation in the care home, with all utilities provided free of charge.
The first issue before the tribunal was whether he was entitled to be paid for the overnight hours, including the time he had been asleep, or only when he had been awake and performing work.
Furthermore, Mr S had not taken any holidays after the Working Time Regulations came into force on 1 October 1998, so the second issue was whether he could carry forward his paid leave entitlement totaling some £15,000.
Employment Tribunal & Employment Appeal Tribunal
On the first point, the Employment Tribunal, chaired by Employment Judge Zuke, found that the exception set out in Regulation 16(1) of the National Minimum Wage Regulations applied, namely that:
“16. Provisions in relation to salaried hours work
(1A) In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working.”
Therefore, they concluded that he was not working throughout each night shift; only on those rare occasions when he was called upon to do so by the night care worker on duty. He was paid the NMW for those limited occasions, hence this claim failed.
On the second point, the tribunal addressed whether a leave request would have been refused and concluded that Mr S could have requested at any time to take leave but instead chose not to do so. As he had been paid for those notional leave weeks, he had lost the right to carry forward annual leave pay falling prior to the holiday year in which he had been dismissed.
Court of Appeal
The court agreed with the Employment Tribunal that the appellant fell within Regulation 16, as he was required to be available at his place of work for the purpose of doing salaried hours work between 10.00pm and 7.00am on each night shift.
However, his home was within his agreed place of work and more often than not, he did spend the entire shift at home in The Studio. Accordingly, the exception in regulation 16(1A) applied to him as well.
Therefore, only those times when he was awake for the purpose of working counted as working hours and his flat rate pay, plus accommodation, meant that he was at all times in receipt of the NMW.
On the second issue, the Court of Appeal again agreed that Mr S did not have the right to simply carry forward holiday indefinitely in the circumstances, affirming the current understanding.
This clarifies somewhat the application of the National Minimum Wage legislation on “on-call” workers. Judge Clark highlighted the distinction between cases where a worker is working just by being present at the employer’s premises and those where the worker is provided with sleeping accommodation and is merely on call. Those falling into the latter group being unable to claim the NMW for the whole of their shifts, only the time they are awake and working.
A full transcript of the case can be found here.
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