National Minimum Wage

The issue of whether employees who were on-call were working on “time work” and therefore entitled to the National Minimum Wage (NMW) was recently considered by the Employment Appeal Tribunal (EAT) in the case of Frudd v Partington Group.

The employees concerned were expected to be on-call once their shifts finished until 8am the following morning. They argued that as they were on-call they were entitled to the NMW.

The EAT found that as the employees were responsible for showing round prospective customers and welcoming late arrivals up to 10pm then this was on “time work” and so until 10pm the employees were entitled to receive NMW. After 10pm, however, they were only required to deal with any emergency call outs (which they got paid £7.50 per call out for) and so from 10pm – 8am this was deemed not to be on “time work” and so they were not entitled to be paid merely for being on-call.

The issues around pay during periods of being on-call continue to evolve and follow on from the decision in Royal Mencap Society v Tomlinson-Blake which dealt with the issue of sleep-in shifts in the care industry.

If you are an employer and pay your staff for being on-call, you may want to review how much you pay and what those employees affected are expected to do during this period to ensure there is no risk of a claim.

Alternatively, if you work and are paid a flat rate for being on-call, you may not be receiving the right amount of wages and have a claim for non-payment of NMW.