Wray v JW Lees & Co (Brewers) Ltd

National minimum wage claims must be determined by the National Minimum Wage Regulations 1999, not by the definition of working time in the Working Time Regulations 1998.

Where an employee is required to sleep at the workplace but has no duties or continuing responsibilities during the night, the employee is not working throughout that period. If the employee is nevertheless available for work, the sleeping-facilities exception means that the time counts only while the employee is awake for the purpose of working. The distinction is between genuine night work, such as a night-watchman’s duties, and being present merely on call.

The appellant was employed as a temporary pub manager and was required to reside and sleep at the premises. She claimed that the overnight periods had to be included in calculating whether her remuneration met the national minimum wage. The Employment Tribunal dismissed the claim, applying the definition of working time in the Working Time Regulations 1998 rather than the National Minimum Wage Regulations 1999.

The appeal concerned whether the overnight presence constituted work or salaried hours work for national minimum wage purposes, including the effect of the sleeping-facilities exception.

1. Appeal dismissed. The Employment Tribunal had directed itself by reference to the wrong statutory regime. The issue had to be determined exclusively under the relevant provisions of the National Minimum Wage Regulations 1999. The error did not require remission because the Tribunal’s factual findings were sufficient to determine the issue.
2. Under the Regulations, remuneration is divided by the total hours worked in the relevant pay reference period. Hours are categorised as time work, salaried hours work, output work or unmeasured work. Regulations 15 and 16 contain specific rules about when periods of availability count.
3. The authorities disclose a distinction between two classes of case. In the first, the employee is required to perform night duties or undertake continuing responsibilities, such as dealing with calls or acting as a night-watchman. The employee is working throughout the period, even if actual tasks arise only intermittently. In the second, the employee has no duties but must remain at or near the workplace and available for work. The deeming provisions may apply, subject to the “at home” and sleeping-facilities exceptions.
4. On the findings, the appellant had no overnight duties or continuing responsibilities. The requirement to sleep at the pub was a limited security or preventative measure. She could leave for periods provided that she slept there. This was not equivalent to the responsibilities of a night-watchman, hotel manager or residential-home night-sleeper.
5. Even if responding to an emergency constituted work for which she had to be available, regulation 16(1A), and its equivalent for time work, meant that the overnight period counted only while she was awake for the purpose of working. The Tribunal had therefore reached the correct result, despite its self-misdirection.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s dismissal of the national minimum wage claim dismissed. The Tribunal’s reasoning was erroneous in its statutory basis, but its factual findings supported the result.