Bath Hill Court Property Management Limited v Coletta

Whether an employee who is required to remain overnight at a workplace is performing salaried hours work under regulation 4 of the National Minimum Wage Regulations 1999 depends on a realistic, fact-sensitive appraisal of the contract and its context. No checklist of factors applies.

Required presence may itself be work where the employee must spend specified hours at a place, is at the employer’s disposal, and faces discipline for leaving. The fact that the employee may sleep, is at home, is called upon infrequently, or is not required to be present by statute does not conclusively show that the employee is merely available for work. Regulation 16 is a deeming provision and does not displace the primary inquiry under regulation 4.

The claimant was employed as a Head Porter at residential flats and lived in accommodation provided on the premises. During each shift he worked from 7am to 7pm and was required to remain on site from 7pm to 7am. He provided overnight emergency cover, including responding to residents, entry-phone calls and lift alarms. He could leave only in tightly limited circumstances and risked disciplinary action otherwise.

The Southampton Employment Tribunal held that the overnight periods were salaried hours work under regulation 4 of the National Minimum Wage Regulations 1999. The employer appealed, contending that the claimant was only available for work and that the Tribunal had failed to take account of matters including the absence of a statutory requirement, the infrequency of calls and the fact that he was at home.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the claimant was working throughout the overnight periods. Its conclusion was a permissible fact-sensitive assessment and disclosed no error of law, perversity, failure to consider a relevant matter, or reliance on an irrelevant matter.

2. The governing question under regulation 4 of the National Minimum Wage Regulations 1999 is whether the worker is engaged on work under a contract to do salaried hours work. It requires a realistic appraisal of the contractual and factual context. The Tribunal had correctly focused on the nature of the work rather than the label “on call”.

3. There is a permissible distinction between presence which merely facilitates later work and presence which is itself the job the worker is employed to do. Presence will normally amount to work where specified hours at a particular place are required, the worker is at the employer’s disposal, and absence exposes the worker to discipline. The Tribunal permissibly treated the claimant as analogous to a night watchman: his required presence supplied the emergency cover which the employer needed.

4. Regulation 16 is a deeming provision for a worker who is not in fact working but is available for work. It does not define or displace the regulation 4 inquiry. Its factors may be relevant on particular facts, but they cannot become a mandatory checklist.

5. The absence of a statutory obligation to provide overnight cover was not decisive. Nor were the claimant’s ability to sleep, the fact that the accommodation was his home, or the precise number of calls received. The calls were not shown to be trifling, and the Tribunal could conclude that the claimant worked simply by being present. The employer’s statement to its insurer that a porter was on duty at all times was admissible evidential background and was given permissible, non-determinative weight.

• Employment Appeal Tribunal: Appeal dismissed; the Tribunal’s finding that the overnight periods were salaried hours work was upheld.
• Southampton Employment Tribunal: On 9 September 2015, held that the claimant was at work from 7pm to 7am during his shifts for the purposes of the National Minimum Wage Regulations 1999.