National Minimum Wage and Being “On Call”

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In the recent case of Shannon v Rampersad & Rampersad T/A Clifton House Residential Home, the Employment Appeal Tribunal (EAT) considered the issue of whether a worker who lived at the care home where he provided on call night assistance was working for the purposes of calculating the national minimum wage.

The Employment Tribunal (ET) found that the Claimant was not working for the hours between 10pm and 7am when he was required to be in the care home, including time when he was asleep. He was only working when he was awake and actually performing work assisting the night care worker on duty. It was on those rare occasions when he was called upon by the night care worker. The ET held that the Claimant had been paid the national minimum wage for these occasions and so his claim failed. The EAT upheld this decision.

The second issue on appeal related to holiday pay but was less noteworthy. The Claimant had not take any holiday after the Working Time Regulations came into force in 1998 and the issue was whether he could carry forward his paid leave entitlement equating to approximately £15,000. The ET held that where a worker could have requested paid leave but chose not to, he could not carry forward his past entitlement to pay in lieu of holiday pay. The EAT held that the Claimant lost the right to claim holiday pay for the years other than the one he was dismissed in, as the facts did not support a conclusion that he had been unable or prevented from taking holiday simply that he chose not to take it. He therefore lost his appeal on both grounds.

Written by
Edward Aston
23rd October 2015