EAT National Minimum Wage – In the context of the National Minimum Wage Regulations 1999 the Employment Tribunal had failed to take into account or, if the factors had been taken into account, explain why they were not material, the following:
(1) The fact that the Claimant was able to leave the School’s premises at any point outside his shift periods, provided that he was sufficiently nearby to deal with such emergencies as might arise.
(2) The fact that emergencies actually arose relatively infrequently.
(3) The fact that the Claimant was able to, and did, attend social functions off the School’s premises, even if he might be called back from those functions, and even if he said that his social life was ‘curtailed’ (the extent to which he did so without permission is not agreed between the parties, nor is the extent to which there was a finding of fact on this).
(4) The fact that the Claimant was able to stay away at weekends, upon notice being given, without taking that period as holiday.
(5) The fact that the School was under no statutory obligation to require any person to remain on the premises.
(6) If such was made (which is disputed between the parties) the finding of fact that the School did not discipline, and would never have disciplined, the Claimant for being away from the School outside his shifts (as opposed to failing to respond to an emergency).
(7) The fact that the Claimant’s contract provided for a normal working week of 39 hours plus overtime, not for 24-hour working.
And consequently there was a remission to the Tribunal to consider whether those factors were material.
Hand QC HHJ
[2016] UKEAT 0129 – 15 – 1801
Bailii
National Minimum Wage Regulations 1999
England and Wales
Employment
Updated: 02 November 2021; Ref: scu.562520