City Of Edinburgh Council v Lauder & Ors

Where a worker’s contracted and normal duties are performed separately from a period spent at or near the workplace awaiting a possible call, the latter is an on-call period for National Minimum Wage purposes. It is not converted into continuous salaried hours work merely because the worker must reside nearby, retain an alarm connection and be available.

Under regulation 16(1A) of the National Minimum Wage Regulations 1999, a worker who is permitted to sleep using suitable facilities counts the period only when awake for the purpose of working. This differs from a job whose required duties themselves extend throughout the night, even if tasks are intermittent and sleep is permitted.

Ten resident housing support workers employed at sheltered housing schemes were contractually required to work 36 daytime hours each week. They occupied tied accommodation and, on four weeknights, took responsibility for an alarm connection between midnight and 8.30am. They could claim overtime or time off if called out.

The Employment Tribunal held that the workers performed 71 hours of salaried work each week and that the exceptions in regulation 16 did not apply. The Council appealed. The central issue was whether the overnight alarm period was work in its own right, or an on-call period governed by regulation 16 of the National Minimum Wage Regulations 1999.

1. Appeal allowed. The Employment Tribunal’s judgment was set aside. A substituted finding was made that the workers were not performing salaried hours work between midnight and 8.30am on the relevant nights.

2. The workers’ contract was for 36 hours of daytime work, between 8.30am and 5.30pm. The overnight alarm responsibility was additional to that main job. The case therefore fell within the on-call category, rather than the category in which attendance overnight is itself the job for which the worker is employed.

3. Regulation 16 applied because the workers were available near their place of work and could be called upon to work. The fact that they were required to occupy tied accommodation, keep the alarm connected and remain available did not make every overnight hour actual work for National Minimum Wage purposes.

4. The workers had suitable sleeping facilities and were not required to remain awake unless called upon. Regulation 16(1A) therefore applied. During the permitted sleeping period, time counted only when a worker was awake for the purpose of working. The Employment Tribunal erred by failing to apply that statutory distinction.

5. There might have been force in the Council’s submission that the 10–15 minutes spent taking back the alarm was merely preparatory to possible work. The point was not determined because, if only that time remained in issue, there would be no National Minimum Wage shortfall.

• Employment Appeal Tribunal: Allowed the Council’s appeal and set aside the Employment Tribunal judgment.
• Employment Tribunal, Edinburgh: Judgment registered on 15 July 2011. It held that the claimants performed 71 hours of salaried work in a normal week.