Shannon v Rampersad and Rampersad UKEAT/0050/15; (2015) EMPLR 063
Employment Appeal Tribunal (EAT)
HHJ Peter Clark
An on-call night worker at a residential home,who was provided with accommodation and was required to be on-call from 10pm to 7am each night, was not ‘working’ whilst on-call and was not entitled to the national minimum wage for that time. He was permitted to sleep while on-call and was only required to work when called upon to do so, which was rare because there was always another night worker on site.
Regulations 15 and 16 of the NMW Regulations 1999 provide that, in addition to time spent actually working, time when a worker is required to be available for work at or near the place of work counts as working time except where the worker is entitled to spend that time at home and the that home is at or near the place of work. Regulations 15A and 16A add that time when a worker is available for work but is provided with suitable sleeping facilities and is entitled to sleep only counts as working time when the worker is awake for the purposes of working.
S complained that he should have been paid the national minimum wage for all hours when he was on-call. His circumstances appear to fall within the exceptions in regulations 15A and 16A, unless it could be said that, while ‘on-call’, he was not merely ‘available for work’ but was actually working. Some earlier cases (eg British Nursing Association v Inland Revenue  IRLR 480 CA and more recently, with very similar facts to this one, Esparon v Slavikovska  IRLR 598 EAT) have suggested that time spent waiting to answer calls, if that is the whole point of the employment, amounts to working, and not merely ‘being available for work’. That remained true, the Court of Appeal had held in British Nursing, even when the worker was entitled to sleep.
The EAT upheld the tribunal’s conclusion that S was not working while on-call - he was merely available for work. The EAT did not clearly explain why the night worker in Esparon was treated as ‘working’ while S was not.
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