The Claimants, who are husband and wife, were employed at a caravan site as a warden/receptionist team. Alongside two other such teams they worked ‘on call’ from evening until morning. They argued that the whole period of time spent on call should be considered ‘time work’ for the purposes of the national minimum wage (NMW) legislation.

The EAT divided the on-call periods into three – evening, night and early morning. The EAT agreed with the lower tribunal that between the end of their shift and 10pm, the claimants were completing ‘time work’ as their responsibilities included showing prospective customers around the site and giving keys to visitors. Therefore, they were entitled to be paid the NMW for this period.

Since the lower tribunal provided no reasoning in respect of the early morning period from 7am-8am, the appeal was allowed and the matter remitted for reconsideration.

Lastly, the EAT held that the lower tribunal was entitled to find that when the caravan park was shut (known as the ‘closed season’), the claimants were ‘available for work’ rather than actually working and this therefore did not constitute ‘time work’.

Practical Lessons

This is another case centring on the distinction between ‘actual work’ and ‘availability to work’ for the purposes of the National Minimum Wage Regulations. The Court of Appeal last year held in Mencap v Tomlinson–Blake that periods when employees are permitted to be asleep when not required are to be characterised as periods of ‘availability to work’ rather than periods of ‘actual work’.

However, it should be noted that the present decision was not such a ‘sleep in’ scenario. The care sector obviously welcomed the Mencap decision, and the present case does not undermine the principle that workers who are "contractually obliged to spend the night at or near their workplace” are not entitled to the NMW when they are asleep, since they are only "available for work".
https://assets.publishing.service.gov.uk/media/5cb6e38040f0b649e2810dae/_1__Mrs_J_Frudd__2__Mr_I_Frudd_v_The_Partington_Group_Ltd_UKEAT_0240_18_OO.pdf