In the case of residential workers and their right to be paid the national minimum wage, what is the status of on-call time outside normal working hours when a worker is not expected to be asleep?
The EAT was concerned with this question in Frudd v The Partington Group Ltd UK EAT /0240/18/DM when it considered that case on appeal for the second time.
Mr and Mrs Frudd were a live-in warden and receptionist team at a caravan park on the Fylde Coast. They were required by their employer to reside on the park and were provided with a caravan to live in. The caravan was their home for the seven years of their employment. They were also required to be on call 2 or 3 times per week between the end of one day shift and the start of the next. They were free to spend their time on-call as they wished, provided one of them remained on site. They claimed that all of this time counted for the purposes of calculating their entitlement to the National Minimum Wage.
The National Minimum Wage Regulations 2015 require a distinction to be drawn between, on the one hand, times when a worker is ‘actually working’ and, on the other hand, ‘availability to work’. ‘Availability to work’ will only count as ‘work’ for the purposes of calculating NMW if it falls within the meaning of ‘time work’ in regulation 32 or ‘salaried hours work’ in regulation 27.
The broad scheme of the NMW Regs is that in order to ascertain the hourly rate in fact paid to a worker in a ‘pay reference period’, the total number of salaried hours/hours of ‘time work’ in the period is divided by the total remuneration paid in respect of it.
The Court of Appeal in Royal Mencap Society v Tomlinson-Blake; Shannon v Rampersad  IRLR 932 CA, decided that ‘sleepers-in’ are ‘available to work’, not ‘actually working’ during the sleep-in shift, save when called upon to perform a task. The Court took the view that they fall within the sleep-in exception in regulations 27 and 32 so their time sleeping-in will not count for the NMW calculation. The Supreme Court have granted permission to appeal against that finding, so the future of the law on that point is uncertain again.
That leaves open the issue of the status of on-call time short of sleep-in for NMW purposes in the case of residential workers. Because the NMW Regs are domestic in origin, the EU case law relevant to the Working Time Regulations 1998 is not applicable. What then is the correct approach? In Frudd v Partingtons, the EAT, His Honour Judge Richardson, sitting alone, has emphasised that the relevant statutory question is, are such workers ‘actually working’ by their presence on call, or merely ‘available to work’ so as to fall into the ‘at home’ exception in the NMW Regs. The distinction to be drawn is one of fact for the Tribunal, taking a common sense approach, and having regard to the ordinary meaning of the words ‘working’ and ‘available to work’, see paragraphs 30 and 31 of the judgment HERE.