Wed 08 May 2019

On call workers and minimum wage

One of the cases previously reported under the name Focus Care Industry v Roberts has returned to the EAT arguing over the complicated issue of when on call work amounts to "time work" under the National Minimum Wage Regulations.       

The slightly complicated history of this case (initially heard before a tribunal as Frudd v Partington Group Limited but was conjoined with two similar cases on appeal and heard as Focus Care Industry v Roberts) related to a married couple who worked as a warden/receptionist team at a caravan park.  The result of the appeal was that the case was remitted back to the employment tribunal for a re-hearing, with the EAT issuing some guidance on how to assess whether workers on night shifts who were asleep while on call should be paid for their time. 

The case proceeded to be reheard under the name Frudd v Partington Group Limited.  The facts of the case were that the Frudds were part of an on call rota which required them to be on call from the end of their shift until 8am the next day on two or three occasions each week.  They were contractually entitled to be paid for any call out between 10pm and 7am, but that left a period of unpaid on call time between the end of shift and 10pm, and again between 7am and the start of the next shift at 8am.  The Frudds claimed that the whole period between the end of the day shift and 8am the following morning should be considered to be time work.  The employment judge disagreed finding that different periods during the night needed different treatment.  The period of night work between 10pm and 7am was not "time work" for the purposes of the National Minimum Wage Regulations and therefore the Frudds only needed to be paid for the periods they were called out.  That finding, which was consistent with the findings of the Court of Appeal in Royal Mencap v Tomlinson-Blake was not appealed to the EAT.   

However, the employment judge did find that during the open season (March to November) the period between end of shift and 10pm was "time work" and the Frudd's were entitled to be paid the minimum wage for those hours.  The evidence showed there was a reasonable amount of work requiring to be done during this period and the requirement to be on call had a marked effect on the Claimant's leisure time - they "were not merely waiting to work, they were working".  Despite a requirement to undertake a security check during the closed season, the employment judge found that during the closed season (December to February) the on call hours between end of shift and 10pm were not "time work", concluding that "call-outs were so rare they would have been able to enjoy their evenings inside the Park with almost complete freedom".   The judge made no express finding about the period between 7am and 8am. 

The Frudds appealed both the finding that the evening call out time during the closed seasons was not time work, and also the failure by the employment judge to deal with the hour between 7am and 8am.  The failure to deal with the hour in the morning meant the EAT was unable to make its own evaluation and therefore that part of the appeal was successful, with the issue being remitted back to the employment judge to reconsider.  With regard to the finding on time work during the closed season, the EAT was of the view that the employment judge was entitled to find that the whole period between end of shift and 10pm was not time work unless the Claimant was engaged in a task such as the security patrol.   

This case reinforces the need for employers to assess whether workers are working or merely available to work when deciding what time must be paid under the National Minimum Wage Regulations.  Where workers are available to work with an occasional requirement to actually work then the whole on call period is unlikely to be categorised as time work. 


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