Workers paid according to the number of hours they are at work are classed as doing “time work” under the National Minimum Wage Regulations 1999 and so entitled to the national minimum wage (NMW). In Frudd v Partington Group, the Employment Appeal Tribunal (EAT) held that a husband and wife team who were working on call after their shift finished were doing time work and therefore entitled to be paid NMW.
Mr and Mrs Frudd worked as warden/receptionist at a caravan park which was open 24 hours a day from March to November. On several days of the week they were expected to be on call after their shifts finished variously at 4.30pm, 5pm or 8pm until 10pm (the evening period). During that time they were expected to show prospective customers round the park, deal with incidents of noise and respond to alarm calls. From 10pm until 7am (the night period) they were paid for call-outs at the rate of £7.50 per person per call. Between 7am and 8 am (the early morning period) they were not paid at all.
During the closed season the pair worked from 8am until 4.30pm although Mr Frudd was required to undertake a security check of the park in the evening. He received no specific payment for this. If they were called out on an emergency from 10pm until 7am they were again paid at the call out rate of £7.50.
They claimed that when they were on call, they were at work and so should be paid the NMW for the whole time.
The tribunal judge held that the claimants were engaged on time work during the evening period in the open season because of the various activities they were required to carry out between the end of a shift and 10pm. As such, they were not available for work but rather they were actually working. As regards the night period the judge found that this was not time work. He did not, however, make any express finding about the early morning period from 7am to 8am.
With regard to the closed season he said that they were not engaged in time work, either before or after 10pm as the evening call outs were very rare. Indeed, provided one of them remained within the park, he commented that they would have noticed little difference between an evening on call and an evening on their day off.
Mr and Mrs Frudd appealed on two grounds:
- That the employment judge should have treated the early morning period (from 7 am until 8 am) as time work in the same way that the evening period had been.
- That the tribunal, having found that there were security checks which had to be carried out during the closed season, should have treated the whole period as time work for the purposes of the NMW.
With regard to the open season, the EAT upheld the judge’s finding that the evening period was time work given the range of duties that the claimants had to perform after their shift ended. As a matter of the ordinary use of the English language, the judge was plainly entitled to find that they were working.
However, the judge did not deal expressly with the period from 7am to 8am in terms of whether Mr and Mrs Frudd were working or were merely “available for work”. As this was an hour when the caravan park was open and the claimants were effectively in charge, the EAT allowed the appeal on this point and remitted the matter to the tribunal for reconsideration.
Finally, with regard to the closed season, the EAT agreed with the judge that the specific duties undertaken by Mr and Mrs Frudd over the period as a whole were consistent with being available for work. As such, the judge was again entitled to conclude that the claimants were not engaged in time work during the closed season.
The National Minimum Wage Regulations 2015 distinguish between actual work (time work) and availability for work. In the former, the NMW is payable for all hours worked as compared with the latter. The Regulations provide that a worker may be treated as working if they are required to be available at or near their place of work unless they are at home. Where the worker is allowed to sleep at or near the place of work and is provided with suitable facility for sleeping, only time the worker is awake is treated as working. This so-called sleep-in exception did not apply in this case. However, it is the subject of an appeal to the Supreme Court in the sleep-in cases of Royal Mencap Society v Tomlinson Blake and ors (see weekly LELR 589 for the Court of Appeal decision) on 12 and 13 February 2020. Watch this space for a future judgment on this important issue.