City of Edinburgh Council v Lauder and Others UKEATS 0048/11 (2012) EMPLR 149
‘On call' and the National Minimum Wage
20 March 2012
Employment Appeal Tribunal
Time spent ‘on-call' during which workers are provided with sleeping facilities at or near their place of work does not count as working time for the purposes of the National Minimum Wage (but it may count for the Working Time Regulations).
This case concerned Sheltered Housing Wardens. They were provided with tied accommodation. Four nights a week they were required to be on-call to respond to emergency alarm calls. They were allowed to take time off in lieu or overtime payments if called out.
The wardens argued that all time on-call was working time. If they were right, then their pay was below the National Minimum Wage. The claim failed because of regulation 16A of the National Minimum Wage Regulations 1999, which provides that time during which an employee is required to be available for work and is provided with sleeping facilities at or near the place of work does not count as working time. But, the ET said, the position may be different if their job was simply to be there to deal with anything that arose. If that was so, mere attendance would amount to work. But here, their job was to attend to their core duties during the day but only to be available on-call at night.
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