Opinion

On-call workers may be entitled to national minimum wage

1st May 2019

On-call workers may be entitled to national minimum wage

The Employment Appeal Tribunal (EAT) considered the tribunal decision in Frudd & Frudd v The Partington Group Limited regarding whether the Claimants were entitled to national minimum wage during an on call period.

The Claimants in this case were husband and wife and working together as a warden/receptionist team for the Respondent caravan site. They were required to work on call for two or three nights per week without pay. The Claimants sought a finding that the whole time they were on call was work for the purposes of the National Minimum Wage legislation.

The tribunal had separated the on call period into three sections:

  • The Evening Period – which was from the end of the Claimants’ shifts to 10pm.
  • The Night Period from 10pm to 7am.
  • The Early Morning Period which was from 7am to the start of the shift at 8am.

The EAT agreed with the tribunal’s findings that the Claimants were entitled to pay during the Evening Period as this was time work under the National Minimum Wage legislation. This was because the Claimants were expected to complete certain work such as checking in late comers.

However, the Night Period was not time work as during this period the Claimants were merely on standby to work rather than actually working. Therefore the Claimants should only be paid for the time that they were actually working during this period, which was the current set up agreed by the Respondent.

The tribunal had failed to consider whether the Early Morning Period was time work so the EAT remitted this to the same tribunal for consideration.

Employer Considerations

This case shows that one size does not fit all when it comes to determining whether an employee on call is entitled to national minimum wage. Employers should be wary of terming certain periods of time as on call work and not paying employees for this duration as they may be in breach of the legislation.

This is an evolving area of law with the recent “Mencap sleep-in” decision being granted leave to appeal to the Supreme Court.

If you have any concerns about your current arrangements and how the changing law may affect your business, please contact a member of the employment team who will be able to assist you.

 

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