South Manchester Abbeyfield Society Ltd v Hopkins

For national minimum wage purposes, a distinction exists between work performed merely by being present at the employer’s premises and time spent on call while provided with sleeping accommodation.

Where a worker sleeps at or near the place of work and has suitable sleeping facilities, National Minimum Wage Regulations 1999 regulations 15(1A) and 16(1A) exclude sleeping time. Only time when the worker is awake for the purpose of working counts as time work or salaried hours work. The fact that the same period may constitute working time under the Working Time Regulations 1998 does not determine entitlement under the national minimum wage legislation.

The respondents were employed as a housekeeper and deputy housekeeper in sheltered accommodation. They worked specified core hours and were additionally required to remain on call overnight, with accommodation provided. They claimed contractual arrears reflecting the national minimum wage for the whole overnight periods.

The Employment Tribunal held that the overnight periods counted as work and ordered payment to one respondent of £25,000 net, leaving the other respondent’s damages to be determined. The central issues on appeal were whether regulations 15(1A) and 16(1A) limited the hours counting for national minimum wage purposes, and whether the Tribunal had exceeded its monetary jurisdiction.

1. Appeal allowed and judgment set aside. The case was remitted to a differently constituted Employment Tribunal.
2. For national minimum wage purposes, the Tribunal had to distinguish between an employee whose work consisted in being present at the employer’s premises, such as a nightwatchman, and an employee who had core working hours but was separately required to remain on call while permitted to sleep.
3. In the latter case, regulations 15(1A) and 16(1A) applied where the worker slept at or near the place of work and had suitable sleeping facilities. Only hours when the worker was awake for the purpose of working counted. The respondents’ overnight on-call periods fell within that scheme because they were additional to their core hours.
4. The concept of working time under the Working Time Regulations 1998, informed by SIMAP and Landeshauptstadt Kiel v Jaeger, could support a claim under those Regulations but did not determine the contractual national minimum wage claims.
5. The Employment Tribunal was required to determine the hours during which each respondent was awake for the purpose of working and whether any further payment was due under the National Minimum Wages Act 1998.
6. The Tribunal’s jurisdiction under the Employment Tribunals (Extension of Jurisdiction Order) was capped at £25,000. It could not convert that limit into a larger gross award by ordering £25,000 net. That issue was unnecessary to decide the appeal but represented the Tribunal’s jurisdictional error.
7. Following Taylor v OCS Group, remittal to a fresh panel was appropriate because the original Tribunal had expressed clear views but had not resolved the relevant factual issues.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s decision, set aside its judgment and remitted the matter to a differently constituted Tribunal.
• Employment Tribunal: held that the overnight periods counted as work for the national minimum wage and ordered Mrs Woodworth £25,000 net, leaving Mrs Hopkins’ damages to be agreed or assessed.