“what method or methods should be used for determining under section 2 above the hourly rate at which a person is to be regarded as remunerated for the purposes of this Act.”
“Where matters are referred to the Low Pay Commission under subsection (1) above, the Commission shall, after considering those matters, make a report to the Prime Minister and the Secretary of State which shall contain the Commission's recommendations about each of those matters.”
“11. The actual working time definition should define what constitutes working time for the purposes of the National Minimum Wage. The National Minimum Wage should also apply to all working time when a worker is required by the employer to be at the place of work and available for work, even if no work is available for certain periods. (para. 4.33) 12 For hours when workers are paid to sleep on the work premises, workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work. (para. 4.34)”
“4.33. We recommend that the actual working time definition should define what constitutes working time for the purposes of the National Minimum Wage. The National Minimum Wage should also apply to all working time when a worker is required by the employer to be at the place of work and available for work, even if no work is available for certain periods. This definition has the advantage of covering agreed ‘downtime’ hours when workers are on-site but unable to work (e.g. because of machine breakdowns or lack of materials). It includes all agreed overtime hours, including call-out hours for emergencies, but it does not include standby or on-call periods away from the employer’s workplace or agreed rest periods. 4.34. Certain workers, such as those who are required to be on-call and sleep on their employer’s premises (e.g. in residential homes or youth hostels), need special treatment. For hours when workers are paid to sleep on the premises, we recommend that workers and employers should agree their allowance, as they do now. But workers should be entitled to the National Minimum Wage for all times when they are awake and required to be available for work.”
“3.55 Having considered the overall economic impact of the minimum wage on the social care sector, we now turn to a more specific policy question of particular relevance to the sector, namely how the National Minimum Wage applies to ‘sleepovers’. ‘Sleepovers’ cover situations where, for example, someone works a day shift in a care home and then sleeps in the home overnight and is available to deal with emergencies but would not necessarily expect to be woken. Similar situations may arise with workers who care for an elderly or disabled person in his or her own home and sleep on the premises, or with wardens in sheltered housing who are available to deal with emergencies during the night. 3.56 In our earlier reports we concluded that for ‘sleepovers’, where the assumption is that the worker will not normally be woken, the National Minimum Wage should not apply (in practice an allowance is usually paid) but workers should be entitled to the National Minimum Wage for the times when they were awake and required to be available for work. We noted the difference between these ‘sleepovers’ and on-call or standby arrangements where a worker is required to be at the workplace outside of normal working hours with the expectation that he or she will be required to work, for which the National Minimum Wage is payable. The Government accepted and acted upon our recommendations, and we believe that these still reflect the right approach.”
“We believe it important to ensure that the position as set out in our earlier recommendations on ‘sleepovers’ is maintained and clarified. We therefore recommend that the Government should examine whether the present uncertainty over the treatment of ‘sleepovers’ can best be resolved through revised guidance, or whether a change to the Regulations is required.”
“In regulation 7 (calculation to determine whether the national minimum wage has been paid), the hours of work in the pay reference period are the hours worked or treated as worked by the worker in the pay reference period as determined— (a) for salaried hours work, in accordance with Chapter 2; (b) for time work, in accordance with Chapter 3; (c) for output work, in accordance with Chapter 4; (d) for unmeasured work, in accordance with Chapter 5.”
“In these Regulations ‘time work’ means – (a) work that is paid for under a worker's contract by reference to the time for which a worker works and is not salaried hours work; (b) work that is paid for under a worker's contract by reference to a measure of the output of the worker per hour or other period of time during the whole of which the worker is required to work, and is not salaried hours work; and (c) work that would fall within paragraph (b) but for the fact that the worker is paid by reference to the length of the period of time alone when his output does not exceed a particular level.”
“(1) Subject to paragraph (1A), time work includes time when a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work except where – (a) the worker's home is at or near the place of work; and (b) the time is time the worker is entitled to spend at home. (1A) In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being time work when the worker is awake for the purpose of working.”
“(1) Time work includes hours when a worker is available, and required to be available, at or near a place of work for the purposes of working unless the worker is at home. (2) In paragraph (1), hours when a worker is ‘available’ only includes hours when the worker is awake for the purposes of working, even if a worker by arrangement sleeps at or near a place of work and the employer provides suitable facilities for sleeping.”
“In these Regulations ‘salaried hours work’ means work– (a) that is done under a contract to do salaried hours work; and (b) that falls within paragraph (6) below.”
“‘Salaried hours work’ is work that is done under a worker’s contract and which meets the conditions in paragraphs (2) to (5) …”
“(1) Subject to paragraph (1A), time when a worker is available at or near a place of work for the purpose of doing salaried hours work and is required to be available for such work shall be treated as being working hours for the purpose of and to the extent mentioned in regulation 22(3)(d) and (4)(b) except where– (a) the worker's home is at or near the place or work; and (b) the time is time the worker is entitled to spend at home. (1A) In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working.”
“(1) The hours listed in sub-paragraphs (a) to (c) are treated as worked for the purposes of determining whether the worker works more than the basic hours in the calculation year … and, where the worker does, the number of hours of salaried hours work in that year … — (a) … (b) hours a worker is available at or near a place of work for the purposes of working, unless the worker is at home; (c) … (2) In paragraph (1)(b), hours when a worker is available only includes hours when the worker is awake for the purposes of working, even if a worker is required to sleep at or near a place of work and the employer provides suitable facilities for sleeping.”
“Where the Act has been preceded by a report of some official commission or committee that has been laid before Parliament and the legislation is introduced in consequence of that report, the report itself may be looked at by the court for the limited purpose of identifying the “mischief” that the Act was intended to remedy, and for such assistance as is derivable from this knowledge in giving the right purposive construction to the Act.”
“When performing their shifts, the BNA staff are instructed that they must answer telephone calls within four rings or apologise for keeping the callers waiting. They must be available throughout the duration of the shift to answer telephone calls for the appellant (there is no provision for ‘protected’ periods of sleep during which no calls will be received). Subject to the foregoing, BNA staff are able to spend part of the shifts asleep or doing other activities, e g watching television. In practice, the busiest times are from 20.00 to 23.00/23.30 and from 05.30/06.00 to 08.00/09.00. Calls are infrequently received in the period 23.30–05.30.”
“I have to say that not only was it open to the employment tribunal and to the appeal tribunal to find that the workers were working throughout their shift, but also, as an issue of the ordinary use of the English language, it seems to me self-evident on these facts that they were indeed so working. No one would say that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home.”
“[R]egulation 15 only arises in a case where a worker is not in fact working, but is on call waiting to work.”
“Once the tribunal had found that the employees were in fact working throughout their shift, regulation 15 only applied thereafter to situations of a particular sort in addition to what can be properly characterised as work; and on the tribunal's findings the situation that they were addressing was not a deemed piece of time work but an actual piece of time work.”
“Regulation 15(1) relates to workers who are, in colloquial terms, ‘on call’. When a worker falls into that category, he has to be paid the minimum wage for his waiting hours, unless he is on call at home. I respectfully agree with the very clear analysis of the Employment Appeal Tribunal to that effect in paragraphs 28 to 30 of its judgment. However, if the worker is permitted to sleep when on call, the hours during which he is permitted to sleep and when he is not actually working do not count as the equivalent of time work.”
“Having said all that, the alternative that is apparently contended for by the BNA, that the employees are only working when they are actually dealing with phone calls, with all the periods spent waiting for calls excluded, would, in my view, effectively make a mockery of the whole system of the minimum wage.”
“2. ... [The employee] was required to attend [the] premises at 5 pm each evening and to remain there until 7 am the following morning. He was so employed by them between June and November 1999. In general his duties included maintaining security of the premises, admitting company employees to the premises when required, closing up afterwards, manning the telephones, and some small-scale cleaning tasks, including emptying the bins. These tasks were not onerous. 3. In the evening between 5 and 6 pm the respondent could have been fully engaged while the day shift were completing their tasks, and it is possible that he might have been required to answer the telephone after that time. This was only an occasional requirement. He was not required to carry out any tasks on a regular basis from that time till around 11 pm when the night shift arrived to collect their vehicles and load them before proceeding to site. He was not involved in any tasks after midnight until 5 am, when the nightshift returned and unloaded. Very rarely was he required to open up the premises during this five-hour period. As nightwatchman he was permitted to sleep when he was not required to carry out work. Within the office premises there was a television set, cooking equipment and a mattress for sleeping, which was used by him for this purpose.”
“The work which was paid for under his contract by reference to the time for which he worked was, for the purposes of reg. 3, his attendance as a nightwatchman for the whole of those hours. ... [T]he fact that the respondent had little or nothing to do during certain hours when he was permitted to sleep does not take away from the fact that he was throughout in attendance as a nightwatchman and required at any time to answer the telephone or to deal with alarms.”
“2. The employer, the Independent Living Organisation Ltd, provides carers for people who because of their age or disability need assistance to maintain their independence and remain in their own homes rather than being placed in a residential home. Miss Walton was a carer employed by the employer. She was allocated to a Miss Jones who suffered from epilepsy and had fits on a regular basis. She was a relatively easy client needing a minimum of supervision. She could attend to her own needs, i.e. she could feed herself, tidy her room, attend to her personal hygiene. The employee was responsible for her washing, ironing, shopping, preparation of meals and medication. Miss Jones spent most of her time watching television and doing jigsaws. She usually retired to bed between 9.30 and 10 p m and slept through the night. Thus Miss Walton was very rarely disturbed during the night. 3. Miss Walton worked three days on, four days off. … When not providing a service to Miss Jones she could please herself as to what she would do, but she was required to be on the premises in case Miss Jones required assistance which occasionally she did, sometimes during sleeping hours. …”
“… that both the employment tribunal and the Employment Appeal Tribunal had gone wrong in that they had confused ‘work’ in the sense of physically doing something with what was ‘work’ for the purposes of the legislation. Whilst Miss Walton was not at times physically working she was under contract to be mentally alert to the needs of Miss Jones. She was as much carrying out work during the time she was at Miss Jones's home as a night watchman would be when relaxing or a nurse when having a cup of tea off-ward.”
“TheBritish Nursing Association and Scottbridge cases are not analogous. Miss Walton stayed at Miss Jones's home for three days. I do not believe that she ‘worked’ a continuous period of 72 hours.”
“40. There is, as I see it, a clear distinction in the 1999 Regulations between ‘working’ and being ‘available for work’: see, for example, regulations 3 and 15. However, that antithesis is not drawn in the context of unmeasured work. 41. The tribunal's finding was that, when not performing her specified tasks, Miss Walton was not required to give Miss Jones her full attention …. In view of this finding, in my judgment it cannot be said that Miss Walton was continuously performing her contractual duties for 24 hours each day for the purpose of regulation 28. Not every worker who ‘only stands and waits’ carries out contractual duties: it is a question of fact. 42. Had it been intended that regulation 28 should apply to hours for which a worker doing unmeasured work is required to be available for work, but not actually carrying out her contractual duties, it would have been necessary to have some equivalent of regulation 15 and, if recommendation 4.34 were being followed in the case of unmeasured work, to exclude time spent asleep.”
“13. … She was required to be on site or within a three minute radius – just far enough for her to take her dog for a walk. She could not socialise in the town, or visit her daughter or family. On the other hand, she could receive visitors, listen to music, eat, undertake other activities at home and, of course, sleep in her own bed. 14. While she was on call, she had to answer emergency and non-emergency calls. She kept a record of calls answered between 6pm and 8am for the eight months from August 2003 to March 2004. It averaged out at 3-4 emergency calls each month, and 10-11 non-emergency calls each month. So, on average, the manager on duty would be called about every other day at some time between 6pm and 8am. These calls could no doubt vary from the relatively trivial to the full scale emergency. Apart from those calls, she was (as the Tribunal put it) not at the beck and call of the residents between 6pm and 8am.”
“For the reasons we have given, Mrs MacCartney was at work throughout the period when she was providing on site cover, so Regulation 15(1) does not arise: see British Nursing Association v Inland Revenue at paragraph 18.”
“1. … The claimant ... commenced employment with the appellant company in November 2001. The hours when he had to attend work were from 10 pm to 8 am, two nights a week. His job was to ensure the security of the work premises, a care home for people with learning difficulties. He had to monitor health and safety and to be accessible should any emergencies occur. He was required to be awake for a quarter of an hour to effect a handover of duties, and to assist with the breakfasts of the residents between 7 am and 8 am. Otherwise he could be asleep, save when his duties required him to be awake, such as if he heard noises requiring investigation or if anything else untoward occurred. Indeed, his job title was 'night sleeper'. 2. The tribunal found that the contract he entered into envisaged a wage which was described as '£20 per night (sleeping only)'. This was later raised to£24 . This was the basic amount paid for being present during the night; a separate payment was made for the time during which the claimant was awake and working. ...”
“14 As this analysis makes plain, the original regulation 15 is a deeming provision. It is treating as time work periods when an employee is in fact not working but only available for work. 15 The exception, which was relied upon by the employer, ensures that certain cases when the employee is available for work will not count as time work because it is taken out of the deeming provision. However, once it is determined that for the whole period of the shift the worker is actually working, he falls firmly under the scope of regulation 3 as a time worker. His status is not that of someone who is available for work but rather someone actually working. It follows that there is no scope for regulation 15 to operate. If that regulation is inapplicable then so is the exception. The claimant is relying on work actually done, not work deemed to be done by virtue of regulation 15.”
“24. It follows that, in our judgment, the analysis in the two earlier cases was plainly correct and is equally applicable here. The claimant was at work for the whole of the shift, essentially for the reasons given in the Scottbridge Construction case. Like the claimant in that case, even during the time when he was permitted to be asleep, he was still required to deal with anything untoward that might arise in the course of his shift. It was not a case where he was deemed to be at work although only available to work. So neither regulation 15 (1) nor regulation 15 (1A) were ever engaged. In our judgment, the tribunal was right to say that Scottbridge was indistinguishable and should be followed. 25. We recognise that there is some artificiality in saying that someone is working when he is sleeping, but the justification for this, and the steps which the employer might take to ensure that he is getting value for the wage paid, were summarised as follows by Lord Johnston when hearing the Scottbridge Construction case in the appeal tribunal[2001] IRLR 589 , para 9: ‘It is wholly inappropriate for the employer while requiring an employee to be present for a specific number of hours, to pay him only for a small proportion of those hours in respect of the amount of time that reflects what he is physically doing on the premises. The solution for an employer who wishes an employee to be present as a night watchman or the equivalent, is to provide him with alternative and additional work on the premises which enables him both to provide the employer with remunerated time and also the protection of someone on the premises for security reasons.’” ‘It is wholly inappropriate for the employer while requiring an employee to be present for a specific number of hours, to pay him only for a small proportion of those hours in respect of the amount of time that reflects what he is physically doing on the premises. The solution for an employer who wishes an employee to be present as a night watchman or the equivalent, is to provide him with alternative and additional work on the premises which enables him both to provide the employer with remunerated time and also the protection of someone on the premises for security reasons.’”