A couple, Janet and Ian Frudd, lived on a caravan park where they worked. They were part of a team of warden/receptionists who worked shifts and were expected to be on call after their shifts two or three days a week. They were paid for any call outs but only during a night time period of 10pm to 7am. They argued that all of their time spent on call should be considered ‘time work’ for the purposes of the National Minimum Wage entitlement.
Are they entitled to be paid National Minimum Wage for the whole time they are on call?
Frudd v Partington Group
Mrs Janet Frudd and Mr Ian Frudd, husband and wife, worked as a warden/receptionist team at a caravan park near Fleetwood. They were one of three teams working shifts. The year was split into two seasons and during open season the caravan park was 24 hours. On two or three days a week they were expected to be on call after their shifts finished. This was split in to three periods. From the end of their shift until 10pm, they did not receive payment for being on call. From 10pm until 7am they were paid for call outs. From 7am until the start of their shift at 8am, they did not receive payment. In the closed season, the couple worked from 8am until 4.30pm with no on call periods; however, Mr Frudd was also required to undertake a security check of the park in the evening when it was closed. He received no payment for this.
A claim was brought by the couple on the basis that whilst on call their pay should be considered ‘time work’ as it amounted to ‘actual work’ and therefore entitled them to be paid the National Minimum Wage.
The Employment Appeal Tribunal made a distinction between the different periods of time spent on call by the couple.
During the ‘evening period’ (from the end of their shift until 10pm) the EAT found that this was ‘time work’ for NMW purposes as the couple were expected to show customers round, welcome arrivals, give out keys, conduct security checks and respond to unruly behaviour or alarm calls. In relation to the ‘night time period’ (between 10pm and 7am) the EAT found that the couple were ‘available to work’ during this time and not actually working unless they were called out. The claimants therefore should be and were paid for any call outs but were not entitled to be paid national minimum wage for this period.
The Employment Tribunal had failed to deal adequately with the period from 7am-8am and the EAT sent the case back to the Employment Tribunal to do so.
Employers should practice caution regarding the payment of employees whilst on call, assessing in each case whether they are working or merely available for work.
There is no ‘one size fits all’ approach when considering whether National Minimum Wage regulations apply in an ‘on call’ or ‘sleep-in’ situation. The EAT sets out that what must be considered by employers in these circumstances is the reason for employing the worker, the extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer, the degree of responsibility undertaken by the worker and the immediacy of the requirement to provide their services. This is an area of employment law which has been unsettled (and therefore unsatisfactory!) for a number of years. It is also high stakes, with employees being able to claim large sums in back pay if they can show that they should have been paid NMW instead of a nominal on call payment.
If you have any queries in relation to National Minimum Wage Regulations or any other HR queries please do not hesitate to contact the employment team on 01228 552600 or 01524 548494.