Tribunal Report: On-call staff can be paid only when they're working

Is a worker entitled to the minimum wage when they're asleep? This was the question for the Employment Appeal Tribunal when it considered South Manchester Abbeyfield Society v Hopkins and Woodworth. Its judgement will be of particular interest to charities providing round-the-clock services

Victoria Willson
Victoria Willson

The story

Ms Hopkins and Mrs Woodworth were employed by the society as a deputy housekeeper and housekeeper respectively until they were made redundant in July 2008. Both were required to be on the premises and on call overnight (on different days) in addition to their basic working hours. By way of accommodation, Hopkins was provided with a room and Woodworth with a fully serviced flat.

They brought claims in the Employment Tribunal, asserting that the hours for which they were on call were hours during which they were "at work", so they were entitled to be paid for those hours at a rate no less than the minimum wage.

They won, but a successful appeal brought by the society will mean the case must be heard again.

The legal decisions

The Employment Tribunal found in the employees' favour on the basis that they were "required to be on the (society's) premises during the night shift, and all of that time, whether they were asleep or not, counts for the purposes of the Working Time Regulations.

"It follows that the Working Time Regulations are engaged and the claimants are entitled to back-pay for the time when they were at work over the night shift."

Woodworth was awarded £25,000 net (the maximum for a breach of contract claim) and the amount due to Hopkins was left for agreement or determination at a later date.

The society then successfully appealed to the Employment Appeal Tribunal, which found that, on the basis of the National Minimum Wage Regulations 1999, the employees were only entitled to be paid for those hours on call when they were awake for the purpose of working.

The appeal tribunal's judgement drew a clear distinction between cases in which an employee is working simply by being present on the employer's premises - for example, a nightwatchman (regardless of whether or not sleeping accommodation is provided) - and those where sleeping accommodation is provided and the employee is simply on call. The Employment Tribunal's decision has been set aside and the case will be remitted to a fresh tribunal to consider what, if any, compensation the former employees are entitled to.

Lessons for charities

Charities that use on-call provisions should review their contracts to ensure that they are compliant with the National Minimum Wage Act and the Working Time Regulations, otherwise they could pay significant compensation.

The task is not always easy, particularly in cases that involve on-call workers. Only a few weeks ago, the government announced that employers that flout the national minimum wage risk being publicly named. That means now is an ideal time for all charities to ensure compliance.

- Victoria Willson is a solicitor at Levenes Employment, third sector specialists

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