The Claimants worked as receptionist and warden at a caravan site operated by the Respondent. As well as having regular working hours, they were required to be ‘on call’ on certain days from the evening until 8am the next day. Whilst their contracts provided for emergency call-out payments during the period from 10pm to 7am, no such provision was made for the period from 7am to 8am (‘the morning hour’). The issue before the ET was whether the Claimants were doing time work during the morning hour within the meaning of Regulation 30 of the National Minimum Wage Regulations 1999 (‘the 1999 Regulations’). The ET concluded that they were not. The Claimants contend that in so doing, the ET erred in law and had failed to apply the statutory presumption under s.28(2) of the National Minimum Wage Act 1998 the worker was paid less than the NMW unless it is established otherwise.
Held, dismissing the appeal, that the ET had not required the Claimants to prove their case on NMW. In the circumstances of this case, where factual determinations had been made at a previous hearing and the parties had agreed not to adduce any further evidence, the ET had not erred in reviewing the position in order to determine whether the claim was made out. Such an approach did not, in the circumstances, amount to a failure to apply the statutory presumption. In deciding that the Claimants were not doing work during the morning hour, the ET did not treat any single factor as determinative. On the contrary, on a fair reading of the judgment, the ET took account of all relevant factors and reached a conclusion that was open to it on the evidence.
[2021] UKEAT 2019-000725
Bailii
England and Wales
Updated: 23 October 2021; Ref: scu.667956