An on-call night worker was not entitled to the National Minimum Wage for all hours of the night shift; only those when he was working. Nor was he entitled to accrued holiday pay for earlier years when he was not prevented from but did not ask for leave.
The Claimant wished to appeal against an employment tribunal (ET) decision which dismissed his complaints for arrears of pay under the National Minimum Wage Act (“NMWA”) and holiday pay under the Working Time Regulations.
The claimant worked as an "on-call night care assistant at a residential care home in which provided for up to 16 elderly residents. He lived at a top-floor staff flat known as “the Studio”. He was required to be in the Studio from 10pm until 7am and was able to sleep during those hours. However, he was required to respond to any request for assistance by the night care worker on duty at the home. In return the Claimant was provided with free accommodation in the Studio, together with a payment of £50 per week, rising eventually to £90 per week. In practice he was very rarely asked to assist the night care worker.
During the daytime the Claimant had day jobs as a driver.
Before selling the care home to the Respondent in this case the previous owner asked the Claimant to sign a contract of employment that included a wider range of duties than he had previously carried out. He also signed a tenancy agreement, agreeing to pay rent of £120 per week for the Studio. His weekly pay was increased from £90 to £210 per week to cover the rent.
Relations with the new owners were far from happy and the Claimant was dismissed shortly after the care home changed hands.
National Minimum Wage
The claim was for £239,490, being the NMW since the NWMA came into force on 1 April 1999, applied to his full nightly on-call hours.
The ET was required to determine whether the Claimant was entitled to be paid for the hours 10pm to 7am when he was required to be in the Studio, including time when he was asleep or only when he was awake and actually performing work assisting the night care worker on duty.
The ET found that his home, the Studio, was at his place of work and the time in question was spent at home. Only time spent awake for the purpose of working counted as salaried hours. The ET concluded that he was not working throughout each night shift; only on those rare occasions when he was called upon to do so by the night care worker on duty. He was paid the NMW for those limited occasions, hence this claim failed.
The Claimant did not take holidays after the WTR came into force on 1 October 1998. Could he carry forward his paid leave entitlement totalling some £15,000? Having considered various cases that set legal precedents the ET decided that where a worker could have requested paid leave but chose not to he cannot carry forward his past entitlement to pay in lieu of holiday pay.
National Minimum Wage
The Claimant's solicitor argued that the ET failed to take into account the fact that the Claimant was required to be present in the Studio between the hours of 10pm and 7am and that the ET was wrong to find that the Claimant was not working throughout his shift when his presence was required for the Respondent to meet its statutory obligation to have adequate staffing levels in the home. He argued that the ET took into account irrelevant factors, namely the presence of another worker on the night shift and that the Claimant was content with his working arrangements..
The EAT considered previous cases in relation to night workers. One case concerned staff at sheltered accommodation. On that occasion the EAT drew a distinction between cases where a worker was working merely by being present at the employer’s premises and those where the worker was provided with sleeping accommodation and was merely on call. The EAT went on to interpret that
• the Claimant was available at his place of work, for the purpose of doing salaried hours work and was required to be available for such work so on these facts, his working hours were between 10pm and 7am on each night shift.
• However, his home, the Studio, was at his place of work and he was entitled to spend the entire shift at home. Accordingly only those times when he was awake for the purpose of working counted as working hours and his flat-rate pay (plus accommodation) meant that he was at all times in receipt of the NMW.
The EAT agreed with the ET and the appeal failed.
The question for the ET was whether the Claimant was unable or unwilling to take annual leave as it fell due for reasons beyond his control, for example due to sickness or (maternity) paternity leave or because the employer would not allow him to do so.
The ET found that the Claimant was aware of the right to holiday pay because he received it in his “day job” as a driver. They rejected the Claimant’s evidence that he made no complaint because he was frightened of upsetting the care home owner. The EAT agreed with the ET's original decision.