A round up of the latest HR and Employment Law updates and related stories.  

NATIONAL MINIMUM WAGE FOR “ON-CALL” WORKERS?

“EXTRA” HOLIDAY PAY FOR EMPLOYEES WHO CHOOSE NOT TO TAKE TIME OFF?

A recent judgement in the case of Mr J Shannon –v- Mr & Mrs Rampersad T/A Clifton House Residential Home UKEAT/0050/15/LA has provided some clarity for employers in relation to whether:

• the National Minimum Wage should be paid for each hour that employees are “on-call”
• holiday pay “in lieu” should be paid to workers who choose to work rather than take their paid leave entitlement off

Clifton House is a registered residential care home in Surrey which has a top floor flat known as “the Studio”. Mr Shannon had been employed by the previous owners of Clifton House as an “on-call night care assistant” during the hours of 10 pm until 7 am. His duty was to assist the night care worker on duty at the home if that worker asked for help, but otherwise Mr Shannon was free to sleep. In reality, Mr Shannon was rarely asked to help the duty night care worker. Mr Shannon received free accommodation in the Studio with all utilities provided free of charge and was also initially paid £50 a week but this subsequently rose to £90. Mr Shannon also has another job as a delivery driver and received holiday pay.

When Mr Rampersad and Mrs Rampersad took over the home in 2013 Mr Shannon signed a contract of employment which included additional duties (providing similar “on-call” cover for a home they owned across the road) for an increased pay of £210 a week. Mr Shannon also signed a tenancy agreement, agreeing to pay £120 a week rent for the Studio.  Unfortunately the relationship between the Rampersads and Mr Shannon did not flourish and Mr Shannon was dismissed. Mr Shannon made a claim to the Tribunal for

• £239,490, because he had not been paid the National Minimum Wage (NMW) since it had come into force since 1999 and saying this legislation applied to his full nightly on-call hours (i.e. from 10 pm until 7 am) and
• some £15,000 holiday (extra) pay because he had worked rather than taken paid holidays under the Working Time Regulations since 1998 and felt he should be able to carry forward that paid leave entitlement and get pay in lieu.

The Employment Appeal Tribunal agreed with the initial Tribunal decision that:

• Mr Shannon was not working throughout each night shift (and so not entitled to NMW for each of those hours) but “only on those rare occasions when he was called upon to do so by the night care worker on duty” and he had already been paid the NMW for those “limited occasions” and

• Since Mr Shannon could have requested paid leave but chose not to, he was not entitled to carry forward any previous entitlement for pay in lieu of holiday pay.

Therefore practice mangers need to remember that:

• any “on-call” employees must receive the National Minimum Wage for the hours they actually work but not whilst they are merely “on-call” and
• if employees choose not to take paid holiday leave they should not receive additional pay in lieu of this. However all holiday requests should be recorded, because if the facts of this case had shown that that Mr Shannon had been unable to request or take leave for reasons beyond this control then his claim for pay in lieu of holiday pay may have been successful. Reasons which could amount to being beyond an employee’s control may include sickness, maternity/paternity leave or “because the employer would not allow him to do so”.