Frudd & Anor v The Partington Group Ltd (National Minimum Wage)

Whether an on-call worker is doing actual time work, rather than merely being available for work, depends on the ordinary use of language and a common-sense assessment of the duties imposed during the particular period. Distinct on-call periods may properly receive different treatment.

An Employment Tribunal must give reasons addressing each materially distinct period where its treatment may affect the result. A failure to explain the status of such a period is an error of law requiring remission. Where a closed workplace requires only occasional tasks, the wider on-call period may be availability for work; time spent performing an actual task remains time work.

The Claimants, a husband-and-wife warden and receptionist team living at a caravan park, claimed arrears of national minimum wage. During the open season they were on call after shifts, with different payment arrangements for the evening, overnight and early-morning periods. During the closed season, Mr Frudd also undertook an evening security patrol.

The Employment Tribunal held that the evening on-call period in the open season was time work, but the overnight period and the whole closed-season on-call period were not. The Claimants appealed, alleging insufficient reasons concerning the open-season period from 7am to 8am and the closed-season security patrol.

The central issue was whether the Tribunal had adequately reasoned its distinction between actual work and availability for work.

1. The appeal was allowed in part. The issue whether the Claimants performed time work between 7am and 8am during the open season was remitted to the same Employment Tribunal. The challenge concerning the closed season was dismissed.

2. The Employment Judge was entitled to divide the open-season on-call arrangements into the evening, night and early-morning periods. The finding that the evening period was time work was consistent with British Nursing Association v Inland Revenue [2002] IRLR 480. The range of duties required during that period entitled the Tribunal to find, on the ordinary use of language, that the Claimants were working.

3. However, the Judge gave no reasoning for the distinct period from 7am to 8am. Once the night period had been treated differently, reasons were required for deciding whether the early-morning period involved work or mere availability. The park was open, the emergency-call-out payment ceased at 7am, and the Claimants were effectively responsible for the park. The EAT could not make that evaluative finding itself, consistently with Jafri v Lincoln College [2014] IRLR 920.

4. In the closed season, the Judge had taken account of the security patrol. The time spent on that patrol was actual work, but treating it alone as time work could not affect the result. The Judge was entitled to find that, while the park was shut, the wider on-call period involved availability for work with occasional actual tasks rather than continuous time work.

5. Applying Sinclair Roche and Temperley v Heard [2004] IRLR 763, remission was directed to the same Tribunal.

• Employment Appeal Tribunal: Allowed the appeal only as to the open-season early-morning period and remitted that issue to the same Employment Tribunal.
• Employment Tribunal: Employment Judge Horne, Manchester Employment Tribunal, judgment dated 2 February 2018. The Claimants' national minimum wage complaints substantially succeeded, but the Tribunal held that the disputed overnight and closed-season on-call periods were not time work.