Governing Body Of Binfield Church Of England Primary School v Roll (National Minimum Wage)

For National Minimum Wage purposes, whether a period of availability counts as work depends on a realistic construction of the employment contract in its factual context. The tribunal must identify the written and oral contractual terms, including relevant subsequent conduct where the contract is partly oral, before applying the statutory scheme.

Labels such as on call, comparisons with other cases, and a distinction between core and non-core hours do not answer that question. A tribunal must take account of potentially material evidence bearing on whether the contract required work throughout the disputed periods, or explain why it was immaterial.

The School employed the claimant as a residential Site Controller. He lived in a bungalow on or near the school site. The Employment Tribunal held that, when he was required to be available between split shifts, at night and at weekends, he was working for the purposes of the National Minimum Wage Regulations 1999. It found that the resulting payment fell below the national minimum wage and awarded £81,532.37 for unauthorised deductions.

The School appealed. It accepted that the claimant had responsibilities for security and emergencies, but contended that the Tribunal had failed to account for evidence that he could leave the site, attended social events away from it, and could stay away at weekends on notice. The central issue was whether that evidence was material to construing the contractual requirement for availability.

1. Appeal allowed and remitted. The Employment Tribunal had adopted the correct broad approach: it had to identify the material contractual terms and then apply the relevant statutory formula under the National Minimum Wage Regulations 1999.
2. Whether the claimant was working during periods of availability depended on a realistic appraisal of the written and oral contract in its factual matrix. The question was whether the contract made the period part of the employee's working hours. It was not resolved by the labels on call or available for work, by the amount of work actually performed, or by analogy with earlier cases.
3. The Tribunal's conclusion that the claimant worked throughout the periods between shifts, nights and weekends could not stand without further consideration. It had not addressed potentially material evidence that he could leave the premises while remaining close enough to respond, that emergencies were relatively infrequent, that he attended events away from the site, and that he could stay away at weekends on notice. It also needed to consider the absence of a statutory requirement for an on-site resident, the absence of discipline for mere absence, and the contractual stipulation of a 39-hour week plus overtime.
4. This was not a perversity or inadequate-reasons decision. It was an error in failing to take account of potentially relevant evidence when identifying the material terms of the contract. The EAT could not itself reconcile that evidence with the Tribunal's conclusion.
5. A Burns/Barke reference was inappropriate. Applying proportionality and the remission considerations in Sinclair Roche & Temperley, the matter was remitted to the same Employment Judge. She was directed to consider the identified factors, receive further evidence if necessary, reconsider whether her conclusion stood, and correct the hours schedule if required.

• Employment Appeal Tribunal: Allowed the School's appeal and remitted the national minimum wage issue to Employment Judge Hawksworth.
• Employment Tribunal, Reading: Reserved judgment sent on 8 January 2015. It held that the claimant had worked the disputed availability periods and awarded £81,532.37 for unauthorised wage deductions.