What Counts as 'Time Work'?

A recent case illustrates that decisions as to whether time spent by a worker who is on call counts as 'time work' for the purposes of the National Minimum Wage (NMW) legislation are highly dependent on the individual facts (Frudd and Another v The Partington Group Limited).

The claimants, who are husband and wife, worked together as a warden/receptionist team at a caravan park owned by the Partington Group Limited. They were expected to live in a caravan on the park and were one of three teams who worked shifts.

During the open season (March to November), the caravan park was open 24 hours a day. On either two or three days a week, the claimants were expected to be on call to deal with customer enquiries or requests for assistance after their shift ended (at either 4:30pm, 5:00pm or 8:00pm) until 8:00am the next day. During the night shift (10:00pm until 7:00am), they were also required to respond to the alarm pager, attending the relevant caravan. In the open season, they were paid for emergency call-outs at the rate of £7.50 per person per hour.

During the closed season, the claimants' normal working hours were from 8:00am until 4:30pm, by which time the park gates were locked. The husband was also required to carry out a security check of the park at some point in the evening. Any emergency call-outs that occurred between 8:00pm and 8:00am were paid at the rate of £7.50 per person per hour.

The claimants argued that the whole period of time that they were on call was time work for the purposes of the NMW legislation, as it amounted to actual work.

As regards the open season, the Employment Tribunal (ET) made detailed findings as to the activities the claimants were expected to undertake during the evening period, which included showing round prospective customers, welcoming late arrivals, giving out keys to visitors and dealing with incidents of noise or unruly behaviour, and found that this was time work. The requirement to be on call had a marked effect on the couple's leisure time in the evening. During the night shift, however, the ET was of the view that they were on standby rather than carrying out actual work. The ET made no express findings regarding the period from 7:00am until their day shift started at 8:00am.

As regards the closed season, the ET found that the claimants did not do time work when they were on call, either before or after 10:00pm.

Before the Employment Appeal Tribunal (EAT), the couple argued that the ET had erred in failing to include in its judgment regarding the open season the period between 7:00am and 8:00am as it was similar to the evening period in terms of what was expected of them. In addition, it had left out of its findings in respect of the closed season the fact that the husband was obliged to carry out a nightly security check – actual work for which he received no payment. The whole period should have been treated as work, rather than availability for work, and the ET had failed to give sufficient reasons for its decision.

The EAT found that between 7:00am and 8:00am during the open season the claimants were effectively in charge of the caravan park. Since no reasoned decision had been given on this period, the matter was referred to the same ET for reconsideration. However, the ET was entitled to find that the call-out period when the caravan park was closed did not constitute time work unless the claimants were engaged in some actual activity, such as the security patrol.