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Appeal court dismisses on-call night worker’s claim for £240,000

In the case Shannon v Rampersad & Rampersad t/a Clifton House Residential Home the Employment Appeal Tribunal (EAT) had to decide whether an on-call night worker was working and entitled to the national minimum wage (NMW) for all the hours of his night shift, or whether he was only entitled to be paid for the time he spent dealing with requests for assistance.

The national minimum wage legislation specifies that working time can, in some circumstances, include time when workers are available for work at or near their place of work.

Shannon was employed as an on-call night care assistant at a residential care home from May 1993 until October 2013. The care home provided him with studio accommodation based on site and he was required to be in the studio from 10pm until 7am every day. While he could sleep during this time, he was also required to assist night care workers if they asked him to. They rarely asked him to help, however, because there was another night worker who was also on duty.

Through this arrangement, Shannon received free accommodation inclusive of all utility bills, in addition to a payment of £50 per week, which eventually rose to £90. In May 2013, a new owner took over the care home and relations between Shannon and the new owner became fraught, eventually resulting in his dismissal in October 2013.

Shannon then claimed he was owed approximately £240,000 in payment for his on-call hours during all the nights he had slept at the studio since the introduction of the national minimum wage in 1999.

An employment tribunal rejected Shannon’s claim on the basis that while he was available for work during his sleep-in hours, and so could be eligible for the NMW, the time he was on-call was actually spent ‘at home’ because he lived at the studio. The tribunal concluded that Shannon was not working during each night shift and was only entitled to be paid for the time he spent actually awake in order to work, and he had already received payment for this. So, his claim failed.

Shannon appealed on the basis that the tribunal had failed to take account of the fact he had to be present in his studio between 10pm and 7am each night in order for the care home to meet its statutory obligation to maintain adequate staffing levels.

The Employment Appeal Tribunal dismissed his appeal. The EAT found it was not the case that Shannon’s attendance for work was necessary for the care home to comply with its statutory obligations. It decided the employment tribunal was entitled to take into account the fact that Shannon was rarely called on to work and there was another night worker on duty.

This case highlights how difficult it is for employers to determine whether an on-call night worker is entitled to payment for the whole night or just the time spent working. It also shows that the outcome of NMW disputes tends to be unpredictable because each one is dependent on its own facts. It is too simplistic to say sleep-in workers will be entitled to the NMW - a worker is not entitled to this just by being at a particular place. Individual circumstances, including what work is carried out, will also be important in determining whether sleep-in night workers should be paid the NMW.

Added: 05-11-2015

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