Shannon v Clifton House Residential

The EAT held that an on-call night worker who lived at his place of work was not entitled to NMW for all hours of the night. He was also not entitled to accrued holiday pay for earlier years when he was not prevented from but did not ask for leave.

Facts

The claimant was employed by the respondent as an on-call night care assistant at a residential care home. The claimant’s permanent residence was at his place of work where from 22.00 until 7.00 he was required to respond to any request for assistance by the night care worker on duty at the home. The claimant brought a claim against the respondent, submitting that Regulation 16 of National Minimum Wage Regulation 1999 (NMWR) applied to the claimant’s salaried hours night work and that he was entitled to accrued holiday pay for earlier years when he did not take leave.

Outcome

The ET found that the claimant’s home was his place of work and the time in question was spent at home. The ET therefore concluded that he was not working throughout each night shift but only on those rare occasions when he was called upon to do so by the night care worker on duty. The ET also found that where a worker could have requested paid leave but chose not to he cannot carry forward his entitlement to pay in lieu of holiday pay.

The claimant appealed.

The appeal failed. The EAT held that the claimant was only entitled to NMW for the hours which he was awake and working. The factors which the EAT took into account were that the claimant had lived in the residential home where he was employed, and the time in questions was time he was entitled to spend at home. The ET was entitled to take account of the fact that there was another night worker on duty and that in practice the claimant was rarely called upon. The EAT also agreed with the ET’s decision on holiday pay as the facts do not support the proposition that the claimant was unable or unwilling to take leave due to reasons beyond his control.

Points to note

The EAT considered a number of decided cases in reaching its conclusion in relation to entitlement to NMW for time when sleeping. These cases demonstrate that mere presence does not itself necessarily entitle a worker to the NMW for the whole shift. The cases in this area are particularly fact-sensitive and do not all fully aligned in their reasoning; therefore caution should be taken when dealing with on-call night workers.