The current rates of the National Minimum Wage are causing employers problems. This month has seen close scrutiny of entitlement to National Minimum or Living Wage when on call.

In Focus Care Agency Ltd v Roberts a care worker supporting vulnerable adults in residential care was required to sleep on site and remain at her post and keep an ear out in case she needed to deal with any incidents arising during the night. The Employment Appeal Tribunal held that she was working throughout her shift even when sleeping and so she was entitled to be paid the National Living Wage rate throughout her shift. They took into account: the reason for her being present (i.e. to meet regulatory or health and safety requirements), the extent to which her own activities were hampered by being present (e.g. she would face disciplinary action if she left site and could not engage in social activities with her family and friends etc.) and what could happen if she was called out (e.g. she would have responsibility for dealing with potentially serious matters).

This will be bad news for Mencap who have recently stated that if they are forced to pay National Minimum Wage to their workers who carry out sleep-in shifts then they will face financial crisis.

In Frudd v The Partington Group Ltdthe Employment Appeal Tribunal considered a similar scenario involving a warden at a caravan park who had to be near to the site during the night in case they were called out to deal with any issues. Again they took into account the reason for him being present (i.e. to deal with any potential issues arising from residents), the extent to which his own activities were hampered by being present (e.g. he could remain in his home or engage in social activities with his family and friends etc. provided that he was still able to respond to any call outs) and what could happen if he was called out (e.g. he would have responsibility for dealing with maintenance matters). In this case they held that he was not working when off site even though he was on call and he was therefore not entitled to pay unless he was called out.

This is not legal advice; it is intended to provide information of general interest about current legal issues.