Working time when sleeping?

The Employment Appeal Tribunal has upheld a tribunal’s decision that an on-call worker is not entitled to National Minimum Wage (NMW) for all hours of the night when a worker is on-call but only entitled to NMW for the hours a worker is awake and working.

Background

The Claimant, Mr Shannon, was employed at a care home during the night as an on-call worker. He had been employed since 1993 and was provided with a flat, which was his home, based at Clifton House. As part of his employment he was required to be in the flat between 10pm until 7am. As a result of the period of his employment Mr Shannon sought payments at the NMW level (rather than the sums between £50 to £90 paid each week) which amounted to £240,000 since the implementation of the NMW Act on 1 April 1999.

As part of his role Mr Shannon was simply required to assist whenever the other working night staff requested it. During the period of his employment, Mr Shannon was rarely required to provide assistance and when he was requested to provide assistance he was in fact paid the NMW.

Both the Tribunal and the EAT rejected his claim. The EAT reviewed the past cases, both those that support NMW claims and those that do not.

They considered that Mr Shannon was not working merely by being in attendance. It considered that Mr Shannon was only entitled to the NMW for those hours when he was awake and working.

Comment

This case does not mean that a tribunal will always consider that an on-call worker is only entitled to NMW for the hours the worker is awake and working. The circumstances of each case must be considered as well as the work and type of work to determine whether NMW is payable. There are conflicting cases notably Whittlestone v BJP Home Support and Esparon v Slavikovska (which determined that sleep-in hours should count towards entitlement to NMW) and although this case gives helpful guidance it does not address the conflicting cases adequately.

Reference: Shannon v Clifton House Residential Home UKEAT/0050/15/LA

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