The Employment Appeal Tribunal (EAT) has held that an on-call night care assistant was not ‘working’ throughout each night shift where he was required to be in his own flat at the care home but he was able to sleep.

The Background

Mr Shannon was an on-call night care assistant who was provided with free accommodation in a care home. He was required to be in the care home from 10pm until 7am but he was able to sleep during those hours unless he was required to respond to any request for assis- tance by the night care worker on duty at the home.

Mr Shannon claimed that he was entitled to be paid the National Minimum Wage (NMW) for the hours between 10pm and 7am when he was required to be at the care home.  In addition, he had not taken any holiday during his employment and claimed holiday pay dating back to the introduction of the Working Time Regulations (WTRs) in 1998.

What does this mean?

The EAT held that Mr Shannon was only entitled to be paid the NMW when he was actually awake and called upon to work by the night care worker. This is because Regulation 16(1) of the WTRs provides that work in- cludes time when a worker is available and required to be available at or near a place of work, unless the work- er’s home is at or near the place of work and the time is time the worker is entitled to spend at home. In this case only time when the worker is awake for the pur- pose of working is counted as ‘working time’ and there- fore attracts the NMW. The EAT held that the Tribunal was entitled to take into account the fact that there was a night care worker on duty and in practice Mr Shannon was rarely called upon.

The EAT also held that Mr Shannon was not entitled to carry forward his paid holiday leave entitlement from previous leave years. A request for leave is not neces- sary where a worker is prevented from taking leave, for example by ill-health or maternity leave. However, in this case, Mr Shannon was not unable or unwilling to take annual leave as it fell due for reasons beyond his control. He could have requested paid leave but chose not to do so. Mr Shannon’s contention that he did not request holiday because he was frightened of upsetting his employer was not accepted.

What should employers do?

All decisions in this area are highly fact sensitive and there are several EAT cases which have had smilar facts but have resulted in different decisions on this issue. Employers who employee workers who ar re- quired to be on call should take specific advice as to what constitutes ‘working time’ as this will affect their entitlement to be paid the NMW.

Case reference: Shannon v Rampersad & Rampersad t/a Clifton House Residential Home