National Minimum Wage

13 May 2019

The issue of payment for being on-call has reared its head again in the Employment Appeal Tribunal.

In Frudd v Partington, the employees were a husband and wife warden/receptionist team at a campsite. They lived on site. During the open season, they were on call from the end of their day shift until the next day's shift began. The on-call period was divided into three: evening, night and early morning. The evenings were busy and involved numerous tasks. They didn’t get paid at all for evenings or early mornings and only got paid overnight if they were disturbed.

The employees said they were 'working' during the on-call period, which was 'time work' under the National Minimum Wage (NMW) legislation. They also claimed the NMW for the whole period during the closed season because they had to do an evening security patrol. The employment tribunal said that the evening period during the open season was ‘time work’ and attracted the NMW. However, the employees were simply available to work during the night. They were only entitled to be paid when they were disturbed and actively working. The judge also found that they were not 'working' outside their shifts during the closed season. The employees appealed.

The Employment Appeal Tribunal accepted that the evening period was time work because it involved active work. They also agreed that the employees should only be paid overnight if they were called out. However, the tribunal had not considered the early morning period properly and that issue alone was sent back to the employment tribunal for reconsideration. The EAT also rejected the appeal on the closed season security patrol. Doing one patrol did not make the whole of the period 'time work' for the purposes of the NMW.

This case is a good one for employers and a helpful reminder of the difference between working and being available to work for the purposes of the National Minimum Wage legislation.


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