South Manchester Abbeyfield Society Ltd v Hopkins and anor
Under the 1998 Working Time Regulations, time spent “on call” can count as working time and the National Minimum Wage Regulations also apply. In South Manchester Abbeyfield Society Ltd v Hopkins and anor, the Employment Appeal Tribunal (EAT) said that workers could only claim the minimum wage for hours “on call” if they were “awake for the purpose of working”.
Mrs Woodworth worked as a housekeeper in sheltered accommodation from 08.30 to 14.00 and 16.00 to 18.00 Monday to Thursday. She was also required to be on call (in the flat provided with her job) from 21.00 to 08.00 during her working week.
Mrs Hopkins, the deputy housekeeper, worked from 08.30 to 14.00 and 16.00 to 18.00) on Friday and Saturday. She was also required to be on call (in a room provided for her) from 21.00 on Thursday to 08.30 on Saturday.
Both women claimed that they were entitled to be paid for their “on call” hours, arguing that they were “at work” and their employer was therefore in breach of the National Minimum Wage Regulations (NMWR).
And the tribunal agreed. It said that as they were "required to be on the [Appellant's] premises during the night shift”, that time counted for the purposes of the Working Time Regulations.
As such, they were entitled to backpay under the NMWR. It awarded Mrs Woodworth "£25,000 net" but left the amount due to Mrs Hopkins to be decided by “agreement or further argument”.
Section 15(1A) of the NMWR states that, in relation to a time worker who “sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being time work when the worker is awake for the purpose of working."
Regulation 16(1A) deals with salaried work in the same terms.
The EAT said that under the NMWR, Mrs Hopkins fell within the category of “time work” and Mrs Woodworth within the category of “salaried hours”.
Having reviewed the relevant cases, it identified a “clear dichotomy” between those cases where the employee was working because they were present at the employer’s premises (such as a nightwatchman); and those where the employee was provided with sleeping accommodation and was simply on call.
In this case, although they might be able to claim that the hours were working hours for the purposes of the WTR, regulations 15(1A) and 16(1A) of the NMWR meant that they could only claim the minimum wage for the hours that they were “awake for the purpose of working”. This was because the claimants had not pleaded their breach of contract claim under the WTR.
The EAT therefore remitted the case to the tribunal to decide what “on call hours” Mrs Woodworth and Mrs Hopkins spent “awake for the purposes of working” and to decide whether, in the light of that calculation, they were due any further payment under the minimum wage regulations.
It also held that the tribunal had exceeded its jurisdiction by awarding £25,000 net of tax and national insurance, as its total jurisdiction was limited to £25,000.