Mr Roll, the Claimant, was a site controller for Binfield C of E Primary School, the Respondent. The Claimant lived in a bungalow close to the school which he was required to inhabit as part of his contract. He was required to work 39 hours per week and was paid for any overtime worked.
The Claimant’s contractual duties included being present at, or near, the site in order to deal with emergencies if they arose and to keep the site secure. He felt this meant he had to be available 24/7 and thus even when was at home and not physically working he was working as per the terms of his contract.
As a result the Claimant felt he had a reduced level of freedom as he could not travel far from home, stay overnight at friends’ houses, or regularly attend social events as he believed he was essentially always on call. The Claimant raised several grievances about this and upon their rejection initiated Tribunal proceedings under the National Minimum Wage Regulations.
The ET allowed the claim stating that due to the nature of the Claimant’s work and the fact his movement was restricted he had not been correctly paid for the time he worked. It awarded £80,000.00 for underpaid wages.
The Respondent appealed and the EAT allowed the appeal and sent it back to Tribunal. It held that the fact the Claimant was allowed to leave the Respondent’s premises, even if he may get called back for an emergency, together with the infrequency of emergencies and there being no contractual requirement to be on call 24/7 meant there were grounds for the case to be reheard.
The takeaway points:
This case suggests that a worker whose movements and/or free time are not impaired by a requirement to respond to occasional out of hours issues are not on call 24/7 and thus have been remunerated appropriately. However, if the emergencies were more frequent or the frequency of emergencies impacted on the employee’s freedom then there could be grounds for claiming incorrect remuneration.
Furthermore any employee in such a scenario could bring a claim for breach of the Working Time Regulations if they have not signed a waiver of their right to work a maximum of 48 hours a week. The overall lesson for employers is that they may need to rethink about how they handle out of hours work or emergencies.
If you are interested to find out how Employment Law cases have impacted HR over the past year, would like to know how to structure a tax efficient termination payment, or, would like to know more about recent employment law changes, then please attend our free seminar this Friday, there are still a few tickets left and we would love to see you there.