Just in case
Labour & European Law Review Weekly Issue 376 02 July 2014
It can be difficult for tribunals to decide whether a worker is merely “on call” or doing time work for the purposes of the National Minimum Wage (NMW) legislation. In Esparon t/a Middle West Residential Care Home v Slavikiovska, the Employment Appeal Tribunal (EAT) held that that it was important to consider why the employer required the employee to be on the employer’s premises.
Ms Slavikovska, a care assistant, was contracted to work 35 hours between 7 and 9am and 9pm and 10pm per week Monday to Saturday. She was also required to work “sleep-in duty” shifts which lasted from 9pm until 7am. She was resident at the home and had a tenancy agreement for her flat and paid rent.
She was paid an hourly rate of £6.70 Monday to Saturday and a lump sum of £25 for the “sleep-in” shift which worked out at substantially less than the NMW. She argued that as she worked throughout the shift doing a variety of tasks including checking residents every 40 minutes to an hour, her employer was in breach of the NMW legislation. The care home argued that as she was able to sleep on site and only had to be available for emergency purposes she was “on call” during the sleep-in shift and it was not therefore in breach.
The tribunal accepted Ms Slavikovska’s evidence that she was required to be on the employer’s premises throughout the shift and that she was not allowed to sleep. It also accepted that whether she was allowed to sleep during the shift or not was irrelevant, and that the cases to which the tribunal was referred (which considered whether workers were allowed to sleep when on-call) did not help. It concluded that she was engaged on time work and had therefore been underpaid.
The EAT acknowledged that it was “very difficult” to ascertain the difference between "at-work" cases, where the employee was paid to be there "just in case”; and "on-call" cases where they were required to be on call but not working the whole time.
In order to distinguish between them, the EAT said that tribunals had to identify why the employer needed the employee to be on the premises. If they were there because of a statutory requirement to have a suitable person on the premises "just in case", that would be a powerful indicator that the employee was being paid simply to be there and was therefore “working” regardless of whether they actually did any work.
The EAT held that Ms Slavikovska was engaged in time work for two reasons. Firstly, because she actually worked and carried out duties during the sleep-in sessions and was required to do so. Secondly, she was entitled to be paid simply to be on the premises regardless of whether or not she worked or whether she carried out her regular duties. The care home was obliged by the regulations to have staff available on the premises at all times, and Ms Slavikovska was there to fulfil that obligation. It was essential that she was there even if she did nothing. The fact she was paid for core hours was irrelevant. She was required to do the sleep-ins quite separately from her day job.
There was no case law to support the proposition that the regulations do not apply if the work in question is not the employee's main job or an adjunct to it and has to be core hours. She was accordingly entitled to be paid at the appropriate rate of the National Minimum Wage.
Although these cases are not straightforward the case law seems to be heading in the right direction. Another case decided at the same time (Whittlestone v BJP Home Support Ltd, LELR 351) held that a care worker who was required to work sleepover shifts from 11 pm until 7am was also entitled to be paid the NMW. In that case the EAT considered the fact that the employer agreed she would work sleepover shifts and that she would have been disciplined if she had not been present.