City of Edinburgh Council v Lauder and others [2012] UKEATS/0048/11/BI
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Published on: 11/05/2012
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Background
Ten employees of the City of Edinburgh Council who worked as „sheltered housing wardens‟, presented pay claims to the Employment Tribunal. They contended that they were 85being paid less than the national minimum wage (“NMW”) once time spent on call was taken into account. They were provided with „tied accommodation‟ rent and council tax free and their contracts provided for salaried hours work of 36 hours per week. In addition, they were required to be „on call‟ at tied houses outside normal working hours on four nights during the working week.This case concerns their employer‟s appeal from the judgment of the Employment Tribunal which found that the Claimants were, in a normal five day week, to be regarded as being engaged on salaried work – for the purposes of the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999 – during a total of 71 hours, as opposed to their contracted 36 hour week.The Court held that the Employment Judge had “undoubtedly fallen into error” and that It was clear from the authorities that the fact that a worker may have to be available „on call‟ outside his normal working hours, does not mean that, for NMW purposes, all those hours are to be regarded as work. It found that the Tribunal had failed to recognise that this was an „on call‟ case of the type identified in British Nursing Association v Inland Revenue [2002] EWCA Civ 494 and Scottbridge Construction Limited v Wright [2003] IRLR 21, that, accordingly, Reg 16 of the National Minimum Wage Regulations 1999 applied and that, further, the circumstances were such that they came within the exception provided for in Reg 16(1A):“In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working.”The Court held that the Claimants were not performing salaried hours work between midnight and 8.30am on the nights that the alarm system was connected to their tied accommodation, i.e. the nights they were “on call”. http://bit.ly/JiayQD
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The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.
This article is correct at 11/05/2012
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