Working Time and National Minimum Wage – EAT decision on “on call” time and salaried hours workMonday, October 13th, 2008
In a decision given on 3 October in the case Hughes v Graham and Jones, the Employment Appeal Tribunal (EAT) allowed an appeal by Mrs. Hughes and ruled that (1) she was working while on call at nights, even though asleep, and (2) her work and pay arrangements constituted “salaried hours work” and she had been paid below the National Minimum Wage (NMW).
Mrs. Hughes worked as a care assistant at a Residential Home. She was provided with accommodation in a flat attached to the Home, the rent for which was subsidised by £150 per month. In addition to working 8 hours a week as a care assistant, her duties were to be on call between 9 pm and 8 am for seven nights a week. On average, she was called out twice a month and received an hour’s pay for each call-out. When she was given notice to quit the flat, she claimed constructive unfair dismissal. This was upheld by an Employment Tribunal but the Tribunal dismissed her claims under the Working Time Regulations 1999 (WTR) and the National Minimum Wage Regulations 1999 (NMWR). The finding of unfair dismissal was not appealed but Mrs. Hughes appealed against the rejection of her claims that
- she was a salaried-hours worker under the provisions of the NMWR and had been paid less than the NMW, and
- she was not given rest breaks of at least 20 minutes after 6 hours on call and was not provided with a rest period of at least 24 hours in a 7-day period, as provided for by the WTR.
The EAT overturned the Tribunal’s decision without difficulty. Mrs. Hughes was working while she was on call, whether or not she was called out. She worked 8 hours a week and was required to be on call for 77 hours, giving a working week of 85 hours. The employer was in breach of the WTR in respect of the number of hours worked each week and by the failure to provide rest breaks and a weekly rest period. As her payment arrangements indicated she was a salaried-hours worker (i.e. paid a salary for a fixed annual number of hours and not paid for any additional hours), she was also entitled to the NMW for those hours, with the exception of when she was sleeping.
The case was remitted to the same Tribunal for determination of the remedy and calculation of the NMW underpayments. The Tribunal was also left to resolve what the EAT described as the “absurdity” of Mrs. Hughes being woken up after 6 hours sleep in order for her to take a rest break.
Hughes v Graham and Jones
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