Employment Law Speed Read – 29/04/19

Facts

The Claimants, Mr and Mrs Frudd, worked together as a warden and receptionist at a caravan site operated by the Partington Group Ltd. The Claimants were expected to live in a caravan on site and were one of three teams working in shifts. Their shifts ended between 4.30pm and 8pm and they were expected to be on-call until 8am the next day. From the end of their shift until 10pm the Claimants were not paid, but were paid £7.50 per emergency call-out from 10pm until 7am during the open season. During the closed season they were paid per emergency call-out from 5pm until 8am. The Claimants sought a finding from the Employment Tribunal that the whole of the time they were on-call was “time work” and that they were entitled to be paid the National Minimum Wage during this period.

Employment Tribunal

The Employment Tribunal (ET) found that the evening period during the open season (from the end of their shift until 10pm) was “time work” due to the requirements placed upon them during this period. During these hours their duties included showing prospective customers around, welcoming late arrivals and dealing with noisy or unruly behaviour. As such, the requirement to be on-call had a marked effect on the Claimants’ leisure time in the evening, they were not merely waiting to work – they were working and so were entitled to the National Minimum Wage during this period. However, the ET Judge found that the night period (from 10pm to 7am) was not “time work” as they were merely on standby to work. The ET made no express findings about the period from 7am to 8am. During the closed season, as the caravan park gates were locked by 4.30pm (when the Claimants finished their shifts), they did not do “time work” on-call.

The Claimants applied for a reconsideration and raised questions about the treatment of the 7am to 8am period.

Employment Appeal Tribunal

The EAT agreed with the ET’s reasoning that the night time period was to be treated differently given the range of duties the Claimants had to perform after their shift had ended. The EAT also agreed with the ET’s assessment of the closed season and found that the ET were entitled to conclude that because the whole of the call-out period was one where the caravan park was closed, this did not constitute time work. However, as there was no reasoning in respect of the period from 7am to 8am, the case was remitted back to the same ET to consider whether this could be considered “time work”.

Comment

This case is useful to understand what factors an ET will consider when assessing working time and is another case that highlights the difficult task faced by employers in drawing the line between time spent on call and working time. It is a reminder however that each case will be highly dependent on its own facts.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.