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No right to National Minimum Wage for on-call time spent at home sleeping?

The EAT has confirmed in Shannon v Rampersad & Rampersad T/A Clifton House Residential Home (2015) that a residential care home worker who was required to spend nights in his flat at the care home and assist other night staff on request was not 'working' for National Minimum Wage ('NMW') purposes save during time actually spent responding to (infrequent) requests for assistance.

Mr Shannon was employed as an 'on-call night care assistant' at Clifton House, a residential care home providing accommodation and care for elderly residents.  He lived in a flat at the care home and from 10pm to 7am he was required to be at home and available to assist the other night staff if necessary, although in practice requests for assistance were made very rarely.  When not providing assistance, Mr Shannon was permitted to sleep.  His salary from Clifton House was modest, and he had various day jobs elsewhere.

Mr Shannon's employment came to an end in 2013 following a change of ownership of Clifton House.  By this point he had been working there for some twenty years.  Subsequently, Mr Shannon sought to recover back pay of NMW for his night-time on-call hours since the NMW came into force in 1999, amounting to almost £240,000. 

At first instance the Employment Tribunal rejected his claim, relying on Regulation 16(1A) of the National Minimum Wage Regulations 1999 (since replaced by Regulation 27(2) of the 2015 Regulations).  These provisions state that time spent sleeping by a (salaried) on-call worker will not count as working time for NMW purposes where they are provided with suitable facilities for sleeping in or near work.  The only time which constitutes working time in these circumstances is time spent awake for the purposes of working (in Mr Shannon's case, very little).

Mr Shannon appealed to the EAT on the basis that the Employment Tribunal had failed to consider the fact that he was required to remain at home while he was on-call and that the Employment Tribunal was wrong to conclude that he was not working throughout his shift as his presence was required for Clifton House to meet its statutory duty to have adequate staffing levels.

The EAT rejected the appeal, holding that the Employment Tribunal had been entitled to find that Mr Shannon was not working simply by being present at the care home despite Clifton House producing a report by the Care Quality Commission which confirmed that it met its obligation to put in place appropriate staffing levels by having a waking member of staff and Mr Shannon on the premises throughout the night. 

This case demonstrates the fact-specific – and therefore unpredictable – nature of this type of claim.  In rejecting Mr Shannon's appeal, the EAT distinguished his circumstances from those in another line of case law in which night-time on-call workers were found to be working (and therefore entitled to the NMW) simply by being present, even when asleep.  On the face of it some of these cases have similar facts.  For example, in MacCartney v Oversley House Management (2006) the EAT found that a manager at a care home who was required to stay within a three minute radius of the care home (where she also lived) while on-call, but could socialise, sleep, etc when not responding to calls, was working for NMW purposes even when she was not responding to calls. 

Unfortunately, this makes is difficult for employers to be confident as to whether sleep-in on-call workers are entitled to NMW for all hours spent on-call, or just those spent responding to calls.  Since a failure to pay NMW can give rise to criminal penalties as well as Tribunal litigation with employees, a risk averse approach is simply to ensure that all workers are paid at least NMW for all working hours, including on-call hours.  However in some cases this may not be financially viable, in which case employers are advised to keep a close eye on case law developments and be ready to adjust working practices accordingly.

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