employment tribunal

In Shannon v Clifton House Residential, the Employment Appeal Tribunal has held that an on-call night care assistant is only entitled to be paid the NMW for the hours during which he is awake and working.

Shannon lived in an on-site flat and was paid a weekly rate.  As part of his job he had to be in the flat nightly from 10pm until 7am and although he was free to sleep during those hours, he had to respond to any requests for support from the night workers on duty. It was noted that in practice, he was not asked to assist very often.

Although Shannon received a weekly payment in respect of these ‘sleep-in’ shifts, this amounted to significantly less than the National Minimum Wage (NMW). Shannon asserted that the ‘sleep-in’ shifts were working time for the purposes of NMW legislation.  For clarification, working time is defined as ‘any period during which a worker is working, at his/her employer’s disposal and carrying out his/her activity or duties’.

His case had significant implications in that he was claiming nearly £240,000 for his full nightly on-call hours from the time the National Minimum Wage Act came into force in 1999 to the date of his dismissal.

The Employment Tribunal (ET) concluded that Shannon was not working throughout each night shift, only on the rare occasions when he was called upon to do so by the night care worker on duty. As he was paid NMW for these occasions, his claim for ‘sleep-in’ time he was actually sleeping, was rejected.

The EAT agreed with this and found that Shannon fell within the exception under Regulation 16(1A) of the National Minimum Wage Regulations 1999 because ‘he lived in the residential home where he was employed’.  We feel this is a very significant part of this case. Other factors taken into consideration were that he did not have to travel to his work to be able to complete his “sleep-in” shift and his presence was not required to meet the Home’s statutory obligations.  There was another night worker on duty and in practice the Claimant was rarely called upon to support the night staff.

So it is likely that those employees who have to travel to work to ‘sleep-in’ may be viewed differently.

The key difference between this case and previous cases is that there is now some clarification that a) whether the employee lives on site is relevant and if so, b) only time spent when the worker is awake for the purpose of actively working counts as salaried hours.  Therefore, presence alone does not necessarily entitle a worker to the NMW for the complete shift.

By comparison in a 2014 case, it was determined that paramedics who were on-call were entitled to NMW for the time on-call.  They were referred to by the EAT as being ‘shackled’ to the employer when they were on-call (even if they were, for example, in the cinema) and therefore entitled to be paid the NMW!  The case (Truslove v Scottish Ambulance Service) differs from the above case of Shannon v Clifton House in that it focused on the status of on-call workers, but it is another example of where the courts and tribunals appear to be widening the scope of what constitutes ‘working time’ and for which at least the NMW should be paid.

It is important to state, however that there is no simple way of determining whether any exemption applies and employers do need to think carefully about the calculation of NMW for any ‘sleep-in’ workers.

HMRC has the power to take civil enforcement action or even a criminal prosecution if you have failed to pay NMW.  This is in addition to potential claims through tribunals for deductions from wages.

If you have any queries relating to your business and wish to discuss whether you are in compliance, please speak to your HR Consultant.

 

Written by Sally Grundy, Senior HR Consultant