26 November 2015
On-call workers and the national minimum wage
Whether or not a worker who is on call at their employer's premises but who is allowed to sleep when his or her services are not required is entitled to be paid the National Minimum Wage (NMW) for the entirety of their shift is a particularly fact-sensitive area of employment law.
In Shannon v Clifton House Residential Home, an on-call night care assistant who was dismissed after the care home where he worked changed hands brought a claim of unfair dismissal and also sought £239,490 in unpaid wages on the basis that he had not received the NMW for his full nightly on-call hours since the NMW was introduced on 1 April 1999.
Mr Shannon had worked for the previous owner of the Clifton House Residential Home since 1993. He was provided with free accommodation in a top-floor studio flat on site and was required to be on call between 10:00pm until 7:00am daily. He was permitted to sleep during those hours although he was required to respond to any request for assistance made by the night care worker on duty at the home. In practice, however, his services were rarely called upon. The Care Quality Commission does not prescribe a specific ratio of care staff to residents but the care home provider must ensure that staffing levels are appropriate. Mr Shannon also had a day job as a driver and was paid only £90 a week for his work at the home.
When the care home was sold, Mr Shannon's relations with the new owners were 'far from happy' and he was dismissed with effect from January 2014.
Whilst upholding his claim for unfair dismissal, the Employment Tribunal (ET) dismissed his claim for arrears of pay, finding that the exception set out in Regulation 16(1) of the NMW Regulations 1999 applied in the circumstances. Mr Shannon's home was at his place of work and so the time in question was spent at home. Also, there was always another worker at the home covering the night shift. In the ET's view, only time spent assisting the duty worker when he was called upon to do so counted as salaried hours and he was paid the NMW for those limited occasions.
Mr Shannon appealed on the grounds that the ET had failed to take into consideration the fact that he was required to be present in the flat between the hours of 10:00pm and 7:00am each night and that the fact that there was another worker on duty was not relevant. He argued that he was entitled to be paid for all of those hours as his presence was necessary in order for his employer to meet its statutory obligation with regard to adequate staffing levels.
In dismissing Mr Shannon's challenge, the Employment Appeal Tribunal noted that the particular facts of the case were different from those where someone is working simply by being present at their employer's premises. His attendance for work throughout the night shift was not necessary in order for the care home to comply with its statutory obligation. Appropriate staffing levels were maintained by having a waking and a sleeping-in member of staff employed during the night. In addition to the fact that he could spend the entirety of his shifts at home and was permitted to sleep throughout, the ET was entitled to take into account the presence of another night worker on duty and the fact that Mr Shannon's services were rarely needed.
In those circumstances, the ET's conclusion that only time that Mr Shannon had spent awake when he was called upon to work counted as salaried hours for the purposes of the NMW Regulations was a wholly permissible one.