The EAT has ruled on whether on-call time, during which workers are allowed to sleep until required to work, should count as working hours for National Minimum Wage purposes.

The facts
The case concerned wardens whose main duties were looking after elderly or vulnerable people resident in the City of Edinburgh’s sheltered accommodation. The wardens were contracted to work 36 core hours a week between 8:30 am and 5:30 pm, Monday to Friday. In addition to this, they were required to be ‘on call’ four nights per week, between midnight and 8:30 am, to deal with emergencies. While on call but not actually working, the wardens could use the time as they wished – for example, to sleep. The council provided the wardens with suitable on-site accommodation, fitted with an alarm system to allow residents to call them out during the night if required.

The employer paid the wardens for their core hours, and also paid them, or gave them time off in lieu, for any time they were actually called out by a resident during on-call nights. It did not pay them for time spent on call but not actually working.

The claim
The wardens claimed they were being paid less than the National Minimum Wage. They argued that, because they were required to remain at their accommodation on call for four nights a week, those on-call hours were working hours. Taking the on-call hours into account, they were paid less than they were entitled to under the minimum wage laws.

The ET and EAT
The employment tribunal agreed with the wardens, ruling that the hours spent on call were working hours, so the employer should pay the wardens the minimum wage for them. The EAT disagreed with the tribunal and agreed with the employer. Simply being on call did not mean the wardens were entitled to be paid as if they were working, unless they were actually awake for the purpose of working during their on-call hours.

Conclusion
Hours spent on call that are part of a worker’s core hours should usually be taken into account for National Minimum Wage purposes. However, where on-call hours do not form part of the worker’s core hours, and the worker does not have to remain awake during on-call time, those on-call hours will not count for minimum wage purposes.


Paul Mander is a partner and Charlotte Stafford a solicitor at Penningtons Solicitors LLP