Night Shifts and National Minimum Wage

If an employee working night shifts is required to ‘sleep in’ at the premises, are they entitled to NMW for this time?

In Frudd and another v The Partington Group Limited the Claimants, who are husband and wife, were employed as a warden/receptionist team. During the open season of the caravan park the Claimants were on call two or three days each week after their shifts finished. Their shifts finished between 4.30pm and 8pm.

The Claimant’s brought a claim in the Employment Tribunal (ET) arguing that the whole of the time when they were on call was ‘time work’ (within the meaning of Regulation 30 of the NMW Regulations 2015) and so they were entitled to be paid National Minimum Wage. ‘Time work’ is defined as work, other than salaried hours work, in respect of which a worker is entitled under their contract to be paid. The Employment Judge found that during the evening until 10pm, when they were on call but not paid, they were on time work, and overnight from 10pm until 7am, when they were paid for call-outs they were not working but merely available for work.

On appeal, the Employment Appeal Tribunal upheld the decision of the Employment Judge, but remitted the case back to the ET to reconsider the early morning period (from 7am to 8am) where once again the Claimants were on call but not paid (and not entitled to any payment), as some reasoning was required to deal with this period.

This case highlights the need for employers to carefully consider what constitutes time work for the purposes of National Minimum Wage legislation.

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