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Working Time

Esperon t/a Middle West Residential Care Home v Slavikovska UKEAT/0217/12

Time spent on premises on-call in case of emergencies at night counts as working time for the purposes of calculating the National Minimum Wage.

S's contract of employment stipulated 35 hours per week during the day plus 'on-call duty' to 'comply with the regulatory requirements you are required to provide back-up in emergency situations.' Her pay was expressed as an hourly rate for her 'normal' 35 hours plus a 'sleeping-in duty' allowance of £25 per night (9pm - 7am).

On inspection HMRC concluded all staff were in receipt of the NMW. However, S claimed she was working during the night and so was not being paid NMW. The ET upheld her claim. Her employer claimed that S was provided with sleeping facilities on site and was only required to work in emergencies. (By Reg 15(1) and (1A) this time is excluded).

(1) Subject to paragraph (1A) time work includes time when a worker is available at or near a place of work for the purposes of doing time and it required to be available for such work except  where (a) the worker's home is at or near the place of work and; (b) the time is time the worker is entitled to spend at home.

(1A) 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 during the hours 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.

The ET accepted any duties performed tended to be at the start or end of duty but also found S had to be on site and could be required to carry out ad hoc duties and deal with emergencies. The ET also accepted S's evidence that she was not allowed to sleep but indicated that whether she could sleep or not was irrelevant. The ET declared that the sleeping-in duty should be included as 'time work' for the purposes of calculating whether S's pay complied with the NMW.

The EAT dismissed the employer's appeal. It examined the relevant regulatory requirement that gave rise to the need for sleep-in duties. It found that there needed to be a sufficient number of 'suitably qualified, skilled and experienced persons employed for the purpose of carrying on the regulated activity'. On that basis the EAT declared that while on sleep-in duty the role S was paid for was simply to 'be there', in order to meet their regulatory requirements. This coupled with the ET's findings that she generally worked and carried out her day job duties during the sleep-in session and was required to do so and her contract stipulated both elements quite separately meant that the sleep-in duty should be considered time work for the purposes of the NMW.

N.B. This does not mean that you have to pay contractual hourly pay rates for on-call/sleeping-in duty, you can still pay a 'lump sum allowance'. However, when calculating whether the employee's pay meets the NMW requirements such time now must be included in the 'working time' for the calculation.