In Shannon v Rampersad (t/a Clifton House Residential Care Home) the Employment Appeal Tribunal recently held that a care home worker who lived in on-site accommodation was not entitled to be paid for nights “on-call”, during which he was usually sleeping. It was held that the exception in Regulation 16(1A) of the National Minimum Wage Regulations applied.
On the facts of this particular case, it was held that the time in question was spent “at home”. In other words, Mr Shannon’s contractual entitlement was to spend his on-call time between 10pm and 7am at home rather than at work. As a result, Mr Shannon was only entitled to recover the National Minimum Wage (NMW) on the rare occasions when he was called upon during his on-call nights.
Any thought that this new case prohibits the payment of the NMW for sleep-ins should be immediately dismissed. The issue is far too complex and fact specific for that. The Judge in the EAT emphasised that this type of case is very fact specific.
So, the case illustrates that it cannot be said that merely undertaking a sleep-in shift entitles a worker/employee to be paid NMW for that shift. All of the circumstances of undertaking a sleep-in will be relevant including the contractual terms, where the sleep/work occurred, the type of work undertaken and the nature and type of payments otherwise made to the worker/employee. It follows that those looking to make/meet such claims should seek legal advice as early as possible.
Written by Andrew J McGrath Barrister at No5 Chambers
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