When will time spent on call be considered 'time work' for the purposes of the National Minimum Wage?

A recent case considered a warden and receptionist being on call overnight at a caravan site

Case law has been grappling for some time with the complex issue of determining when a worker who is "on call" or on a sleep-in shift is undertaking 'time work' for the purposes of calculating the National Minimum Wage. This is particularly complex in situations where workers live on site and/or may be sleeping for all or part of the "on call" period. 

Case details: Frudd & Another v The Partington Group Limited

Mr and Mrs Frudd worked as a warden/ receptionist team between 2008 and 2015 for a caravan site owned by the Partington Group. They were provided with a caravan on the site in which they were expected to live. They worked shifts and for two or three nights a week were expected to be on call from the end of their shift until 8am the next day to deal with late arrivals and emergencies at the site. The contract of employment specified that they would receive special payment for emergency call-outs after 10pm, but otherwise did not provide for any on call pay.

The Frudds claimed that the totality of their on call shift counted as 'time work' and that they were entitled to the NMW for the whole of these shifts.

The law

The National Minimum Wage Regulations 1999 and 2015 (the 'Regulations') draw a distinction between time spent working and time where the employee is 'available for work' but not working. A worker is entitled to be paid for both, but will not be paid for time when they are 'available to work' if the time is spent at home or the worker is not 'awake for the purposes of working'.

In Royal Mencap Society v Tomlinson-Blake (2018) the Court of Appeal specifically dealt with sleep-in carers and clarified that carers who are expected to be able to sleep for most of the shift will only be performing time work when they are actually called upon during the night. Previous case law suggested that such carers were actually working rather than merely available for work and should be paid for the full sleep-in shift. For further details, see our case report on this decision in the September 2018 edition of our Employment law bulletin.

The decision in Mencap is specific to sleep-in arrangements and did not address in detail the issue of actual work or availability to work in other on call scenarios. However, the Mencap decision did point out that there would be situations where workers who lived on site (such as caretakers) would be required to be on call outside of normal working hours and that they would not be performing time work during periods when they were expected to be able to sleep. 

The decision

The EAT agreed with the decision of the employment tribunal, which drew distinctions between certain parts of the Frudds' shift. The tribunal and EAT decided that, due to the Frudds' presence on site and the nature of their duties up until 10pm, they were in fact working during this time. However, in the tribunal's and EAT's view, the contract and working arrangements were sufficiently clear that the Frudds were not expected to be awake for the purposes of working from 10pm onwards. They were required to respond to emergencies between 10pm and 7am, but the contract already provided for these callouts to be paid. This amounted to the Frudds being 'available to work' only.  

Wrigleys comment

This case is a useful example of the application of the Court of Appeal's decision in Mencap outside of the context of sleep-in carers. In particular, it highlights that it does not matter if a worker is actually awake or asleep at any particular time for NMW purposes. What matters is whether the working arrangement is one where the worker is expected to be able to sleep during their shift. If so, they are likely to be viewed as 'available to work' and only time spent actually working will count: the worker won't be paid for any time they are expected to be asleep and they are not, in fact, working.

When deciding on whether the arrangement is one where the worker is expected to be able to sleep, tribunals will consider the requirements set out in the contract but will also consider what actually happens in practice, taking evidence on how frequently the worker is disturbed during the night.   

The Supreme Court is due to hear an appeal to the Mencap case sometime in 2019, which has the potential to shift the current understanding of this complex area of law once again.