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Further clarification as to what counts as working time for the purposes of National Minimum Wage

12 June 2019

Keen readers of our updates will remember the Mencap case of last year 'Sleeping on the job: what constitutes working time?' which considered whether time spent sleeping by care workers at work was working time and for which they should be paid National Minimum Wage. Mencap established that care workers who were asleep whilst on call were only available for work and not actually working, meaning that they did not need to be paid NMW for periods of time spent sleeping.

The recent case of Frudd v Partington Group UKEAT/0240/18 has considered this position further. In this case, the Claimants worked at a caravan site and, having worked a full day shift, were expected to be on-call to address any alarm calls from caravans on the site throughout the night until 8.00am. They were paid for the time taken to answer any call outs.

Mr and Mrs Frudd argued that the whole of the time they were on call was "time work" for the purposes of NMW, and so they should be paid at least NMW for that period. The Employment Tribunal at first instance found that the night period was not time work (from 10pm to 7am), but that the evening period (from the end of the shift until 10pm) was time work. This was on the basis that in the evenings, the Claimants showed round prospective customers, welcomed late arrivals and dealt with any behavioural issues that may arise, among other duties. The Tribunal judge held these were expected duties and had a “marked effect on the Claimants’ leisure time in the evening”. In respect of the night period, the Employment Judge held that the Claimants were merely “on standby to work” rather than actually working.

The Claimants appealed to the Employment Appeal Tribunal. The EAT restated the law that “there is a distinction for the purposes of the National Minimum Wage Regulations between actual work and availability to work”. The Mencap case had recognised that “there were many cases in which workers who have accommodation at work, such as caretakers or residential managers, are required to be on-call outside normal working hours, but not at times when they were expected to be asleep”. The British Nursing Association case, referred to in our previous update, related to a nurse who was manning a 24-hour telephone line, working from home. Calls during the night to the line were less frequent and if there were no calls to answer the nurse could be asleep or doing other activities. Nevertheless, in that case, the entire shift was held to be time work for the purposes of NMW.

The EAT concluded that the Tribunal’s finding that the night period was not time work was consistent with the Mencap case, and that the evening period was time work was consistent with the British Nursing Association case. Where the Claimants were undertaking a security patrol during the night period, the EAT found that the Claimants were merely available to work, and so did not constitute time work for the purposes of the NMW.

Comment

This case provides further clarity at the distinction between the positions in Mencap and British Nursing Association. Where individuals are expected to undertake actual tasks during a period, even where they can do other tasks (including sleep) if it is quiet, this would be time work and NMW would be payable. However, where individuals are merely “on call” and expected to answer alarm calls or similar, then they would be merely “available for work”, and NMW would not be payable unless they were actually called out.

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