Labour & European Law Review Weekly Issue 445 11 November 2015
In contrast to recent cases concerning on-call workers the Employment Appeal Tribunal (EAT) has held in Shannon v Rampersad & Rampersad t/a Clifton House Residential Home that a salaried worker who sleeps at or near his place of work when on call is not entitled to the National Minimum Wage (NMW).
Mr Shannon started work in May 1993 as an “on-call night care assistant” in a nursing home. He was provided with a flat in a residential care home which was also his home. He was required to respond to any request for help by the night care worker on duty at the home from 10pm until 7am.
In practice Mr Shannon was very rarely asked to help and he was allowed to sleep during that time. Both he and the night care worker together met the care home’s statutory staffing levels at night. He also worked during the day as a driver for which he received holiday pay.
Sometime after the home was sold to other owners, Mr Shannon was dismissed effective from January 2014. He lodged a claim for unpaid NMW amounting to almost £240,000 and unpaid holiday pay.
Regulation 16(1A) of the NMW Regulations 1999 (now regulation 27(2) of the 2015 National Minimum Wage Regulations) states that “In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time … shall only be treated as being salaried hours work when the worker is awake for the purpose of working.”
This section only applies where the worker is on call but not working.
The parties agreed that Mr Shannon was engaged in “salaried hours work” as defined in Regulation 4. However, the tribunal found that the exception set out in Regulation 16(1A) applied. That is, only time spent when the worker was awake for the purpose of working counted as salaried hours. As Mr Shannon was not working throughout each night shift (just on rare occasions when he was called on by the night care worker on duty) and was paid the NMW for those limited occasions, his claim failed.
It also rejected his claim for unpaid holiday pay. While the tribunal recognised that a request for leave is not necessary to carry forward the right to claim pay in lieu of holiday he was prevented from taking, this was not the case here. The tribunal found that Mr Shannon was aware of the right to holiday pay as he received it in his “day job” as a driver and rejected his evidence that he was too frightened to ask for it in case it upset his employer.
The EAT dismissed the appeal on both grounds, holding that the exception in 16(1A) applied. Although Mr Shannon was available for the purpose of doing salaried work during each night shift between 10pm and 7am and therefore theoretically eligible for the NMW, he was at home and therefore fell within the exception. The EAT held that only the time he was awake counted as working. The fact that he was required to be present in the home throughout the night shift did not necessarily entitle him to the NMW for the whole shift.
As for his claim of unpaid holiday pay, the EAT held that on the facts found by the tribunal Mr Shannon could have requested leave but chose not to. As such he could not show that he was unable or unwilling to take leave due to reasons beyond his control.
In this case the EAT did not consider that the requirement to be present amounted to working time for the purposes of the NMW. This is in contrast to two other recent decisions Whittlestone v BJP Home Support Ltd (weekly LELR 351) and Esparon t/a Middle West Residential Care Home v Slavikovska (weekly LELR 376) where the EAT held that care workers who were required to sleep in were entitled to the NMW on the basis that they were working by merely being present. Shannon shows that whether a sleep-in care worker will be entitled to the NMW for all the hours they sleep in will very much depend on the facts of the case.