This article was published on July 18th, 2014
There have been various cases on whether workers who are required to be ‘on-call’ or to sleep at their place of work are entitled to the National Minimum Wage (NMW) for those hours. They may not actually be working but they are there and available to work if and when needed.
The law isn’t entirely clear on what is and isn’t ‘time-work’ for the purposes of the NMW regulation. The Esparon case may help clarify it a little.
Ms Slavikovska was a care worker who was paid less than the NMW for night shifts spent at the care home where she worked. She brought an employment tribunal claim, arguing that the hours she had put in amounted to ‘time-work’ which attracted the NMW. (‘Time-work’ is different from time spent ‘on-call’, which won’t in its entirety amount to working time.)
The Employment Appeal Tribunal held that Ms Slavikovska’s sleep-in shifts were ‘time-work’. In cases like this, the circumstances are important and the tribunal will look carefully at what exactly the worker is required to do and when during the course of the shift and, crucial to Ms Slavikovska’s case, why the employer needs the worker to be there during then night.
Like most, if not all, care homes Esparon was legally required to have staff in the facility at all times, so Ms Slavikovska was helping her employer discharge that obligation. That swung the decision in her favour. Even though she may not have always been actually working (she may have been sleeping), she was still entitled to the NMW during those hours because of the requirement that she be on the premises.