Abbeyfield Wessex Society Ltd v Edwards
Our final case this week is a wages claim. Earlier in the year we reported some NMW cases that laid down the criteria for deciding whether on-call or sleep-in workers should be paid the minimum wage for their shift. The criteria were:
(i) The employer’s particular purpose in engaging the worker
(ii) The extent to which the worker’s activities are restricted by the requirement to be present and at the disposal of the employer
(iii) The degree of responsibility undertaken by the worker
(iv) The immediacy of the requirement to provide services if something untoward occurs or an emergency arises
NMW entitlement would be decided on a case by case basis depending on how the facts of case related to the above factors. In this case, the question was:
Does an employer’s assertion to clients that someone will be able to cover work 24/7 entitle the employee to the minimum wage for the duration of a sleep-in shift?
Ms Edwards, the Claimant, was a sleep-in assistant for Abbeyfield Wessex Society, the Respondent, which offered sheltered accommodation to persons over the age of 55. During her shift the Claimant was to perform any duties that arose during emergencies. If there were no emergencies she could do anything, including sleep.
Whilst responding to emergencies, the Claimant was paid at above the minimum wage. However, for the rest of the shift, she was paid a lump sum. This figure, if there were no emergencies, was below the minimum wage when divided by the hours of the shift.
The Respondent told prospective residents that should anything happen during the night, there would be someone on hand to handle the problem. The Claimant, believing she was entitled to the NMW for her shifts, lodged a wage claim for back pay.
The ET held that because the Claimant slept at the Respondent’s premises and, most importantly, because she was required to swiftly deal with any emergency – which was what the Respondent’s expressed to customers and their purpose for employing her was – she was entitled to the NMW. It believed the Respondent was simply paying the Claimant to be there and awarded £24k in back pay.
The Respondent appealed and the EAT allowed the appeal. It said that the ET had not followed the criteria laid out in recent case law. It found there was not enough findings about whether the Claimant’s activities were restricted and referred the case back to a fresh ET to be re-decided.
The takeaway point
Maybe, applying the four point test from recent case law will having varying results depending on the facts of the claim. If such an assertion, and other factors, satisfies the criteria in the test then the employee(s) in question will be entitled to the NMW.
Along with the gig economy, sleep-in/on-call work has been one of the bigger case law issues of 2017 and we will provide you with updates from any future cases.