Shannon v Rampersad & Anor (t/a Clifton House Residential Home) (Working Time Regulations: Holiday pay)

An on-call worker who is entitled to sleep at home at or near the workplace is not necessarily working throughout the on-call shift. Under National Minimum Wage Regulations 1999, where suitable sleeping facilities are provided, only time when the worker is awake for the purpose of working counts as salaried hours work.

Untaken annual leave does not carry forward merely because the worker did not request it. A worker may recover pay in lieu on termination for earlier leave only where the worker was prevented from taking it, or was unable or unwilling to take it for reasons beyond the worker’s control. Examples include sickness or an employer’s refusal to permit leave.

The Claimant was employed as an on-call night care assistant at a residential home. He was required to remain in a flat at the home between 10pm and 7am, could sleep there, and was rarely called to assist the waking night worker.

The London (South) Employment Tribunal dismissed his claims for National Minimum Wage arrears and accrued holiday pay under the Working Time Regulations 1998, while upholding his unfair dismissal complaint. It held that only time when he was actually working counted for minimum-wage purposes and that he could not carry forward untaken leave from earlier years.

He appealed to the Employment Appeal Tribunal. The central issues were whether his required presence meant that the whole shift was salaried hours work, and whether he could recover payment for leave which he had not requested during his employment.

1. Appeal dismissed. The Employment Tribunal made no error of law in dismissing either the National Minimum Wage or holiday-pay claims.

2. The Claimant was prima facie available at his place of work for salaried hours work under Regulation 16(1) of the National Minimum Wage Regulations 1999. However, his home was at the place of work and he was entitled to spend the shift there. Under Regulation 16(1A), he had suitable sleeping facilities and was required to respond only if called by the waking night worker. Only periods when he was awake for the purpose of working therefore counted as salaried hours work.

3. Required presence throughout the night did not itself establish entitlement to the minimum wage for the whole shift. The Tribunal was entitled to rely on the presence of a waking night worker and the fact that the Claimant was rarely called. The authorities in which workers were working merely by being present were distinguishable; the facts instead reflected the approach in South Manchester Abbeyfield Society Ltd v Hopkins, [2011] ICR 254, Wray v J W Lees & Co (Brewers) Ltd, [2012] ICR 43, and City of Edinburgh Council v Lauder.

4. The Tribunal had adequately explained its conclusion. Its finding that the National Minimum Wage claim failed was permissible and was not perverse.

5. As to Regulation 13(9) of the Working Time Regulations 1998, leave may carry forward where a worker was prevented from taking it, or could not take it for reasons beyond the worker’s control. The Tribunal correctly found that the Claimant knew of his entitlement, could have requested paid leave, and chose not to do so. It rejected his evidence that fear of upsetting the previous owner prevented a request. He consequently lost entitlement to payment for leave from years before the holiday year in which he was dismissed.

• Employment Appeal Tribunal: dismissed the Claimant’s appeal from the Employment Tribunal.
• London (South) Employment Tribunal: Employment Judge Zuke’s Reasons, promulgated on 11 November 2014, dismissed the National Minimum Wage and holiday-pay claims, upheld the unfair dismissal complaint, and recorded withdrawal of a further complaint.