Most UK workers are entitled to be paid the National Minimum Wage (NMW), which is expressed as a minimum hourly rate. The Employment Appeal Tribunal (EAT) has recently considered whether an on-call night worker who lived at his place of work was entitled to be paid NMW for all the hours of his night shift.
The case involved Mr Shannon, a night assistant who for many years lived in a flat at his employer’s care home. In return for free on-site accommodation and a small weekly salary, Mr Shannon was required to remain in his care home residence every evening from 10pm to 7am in case the care worker on duty required his assistance. He was permitted to sleep during these hours and, in practice, his help was rarely needed. Following a break-down in his relationship with the care home, Mr Shannon was dismissed. He brought a claim for almost £240,000 in unpaid NMW in respect of all the night-time hours when he had been required to stay in his flat.
The EAT held that Mr Shannon was only entitled to receive NMW when he was awake for the purposes of working. This was limited to those odd occasions when he was required to assist the care worker on duty. Mr Shannon’s flat-rate of weekly pay and free accommodation meant that he had received the NMW at all times.
While acknowledging that on-call arrangements are “particularly fact sensitive,” the EAT distinguished the case of Mr Shannon from a scenario where a worker is working simply by being present at their employer’s premises. In these latter circumstances, NMW may be payable for all hours of a night shift, including those spent asleep.
While this case confirms that being present at a workplace is not in itself sufficient for entitlement to NMW, it does little to resolve the ongoing uncertainty surrounding NMW liability for sleep-in on-call workers. Given that failure to pay NMW can result in criminal convictions, the current lack of clarity is regrettable. Where finances allow, the cautious approach is to pay NMW for all on-call hours. If this is impractical or unpalatable, affected employers may prefer to wait for further guidance as case law develops.