esparon_slvikovskaEAT201405
EAT National Minimum Wage : The Claimant was employed as a care worker at the Respondent’s residential care home. She was required to work a number of ‘sleep-in’ night shifts and be available for emergency purposes. There were statutory provisions that required the Respondent, for example to ensure that at all times suitably qualified, competent and experienced persons were working at the care home in such numbers as are appropriate for the health and welfare of service users.
The Claimant maintained that she was required to carry out certain duties during the night shift whereas the Respondent maintained that she was not required to carry out any duties save in case of emergencies and was permitted to sleep in the facilities provided. The Claimant received a lump sum for each sleep-in shift, but this was at a rate substantially less than the hourly rate of the National Minimum Wage. The Claimant claimed inter alia that she was entitled to be paid the National Minimum Wage because she was carrying out ‘time work’ as defined by section 1(1) of the National Minimum Wage 1998 and regulations 3 and 15 of the National Minimum Wage Regulations 1999. She put her case on 2 grounds:
(a) she was required to work during her sleep-in shift and
(b) she was entitled to be paid simply for being present at the Respondent’s premises.
The Employment Tribunal found in favour of the Claimant on both grounds. On appeal the Employment Appeal Tribunal upheld the decision on both grounds. The authorities in point were difficult to reconcile; however in the instant case the Employment Tribunal was correct to find that the Claimant was entitled to be paid simply for being at the Respondent’s premises. Her presence constituted time work.
An important consideration in determining whether an employee is carrying out time work by reason of presence at the Respondent’s premises ‘just in case’ must be why the employer requires the employee to be on the premises. If he requires the employee to be on the premises pursuant to a statutory requirement to have a suitable person on the premises ‘just in case’ that would be a powerful indicator that the employee is being paid simply to be there and is thus deemed to be working regardless of whether work is actually carried out.
Serota QC HHJ
[2014] UKEAT 0217 – 12 – 0805, [2014] IRLR 598, [2014] ICR 1037
Bailii
England and Wales
Employment
Updated: 02 November 2021; Ref: scu.525198
