The EAT has confirmed that an on-call night worker who lives at his place of work is only entitled to the National Minimum Wage for the time he is actually awake and carrying out his employment duties.
In Shannon v Rampersad & Anor (t/a Clifton House Residential Home) (Working Time Regulations: Holiday pay) [2015] UKEAT the claimant worked at a residential care home, in the top floor ‘staff flat’ and was able to sleep through the night, however he was required to respond to all requests for assistance. There were also set hours where he was required to be in residence, and it must be noted that the claimant would not have been the only care worker on site at night.
The claimant’s contract included entitlement to free accommodation at the ‘staff flat’ (inside the residential home), plus a salary of £50 per week. He is said to have been “rarely asked to assist”.
The EAT found that the Claimant fell within the exception under the National Minimum Wage Regulations because he lived in the residential home where he was employed, and the time in question was time he was entitled to spend at home.
The EAT also found that the tribunal was entitled to take into account the fact that there was a night worker on duty and that the Claimant was only rarely called on.”
It should be emphasised that whilst the EAT ruled in the employer’s favour in this case, NMW cases concerning working and sleeping on site are very fact specific and hence advice should be taken on the specific circumstances of the case in question.
In any event, the position as regards the NMW, not governed by EU law, is to be contrasted with the position under the Working Time Regulations, which are subject to the EU Working Time Directive. In SiMAP v Conselleria de Sanidad y Consume de la Generalidad Valenciana [2000] IRLR 845 (ECJ) and Landeshauptstadt Kiel v Jaeger [2003] IRLR 804, the European Court of Justice held that all "on-call" time constitutes working time if the employee is required to be in the workplace rather than at home, even if the worker is asleep (at the workplace) for some or all of that time. Hence on call time where sleeping facilities are provded may be working time for the purposes of the Working Time Regulations but not for the purposes of the NMW.