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What counts as 'actual working time' for on-call staff?

VWV

A recent case, Frudd v Partington Group, highlights the continuing difficulties in establishing what counts as 'time work' for on-call staff and whether they should be paid for this.

Facts Mr and Mrs Frudd were the warden and receptionist at a caravan park, which was owned and run by Partington Group.

'Open season' at the caravan park ran from March to November and the site was open 24 hours a day.

During open season, Mr and Mrs Frudd were required to be on-call from the end of their respective shifts, which ended between 4.30pm and 8pm, until 10pm (the 'evening' shift), for which they were not entitled to any pay.

They were also on-call throughout the night, from 10pm until 7am (the 'night' shift), during which time they were paid for any call-outs they were required to go on.

There was an additional shift between the hours of 7am and 8am (the 'morning' shift), during which time Mr and Mrs Frudd were not entitled to any pay, but were still on-call.

During the 'closed season' (November to February), the park gates closed at 4.30pm (which is when Mr Frudd's shift ended) and he was required to be on-call from 8pm until 8am.

Mr Frudd was also required to undertake a security check of the site in the evenings for which he did not receive specific payment.

Mr and Mrs Frudd brought a claim against Partington Group, arguing that they should be receiving minimum wage for the time during which they were on-call, as they claimed this was 'time work' amounting to 'actual work' under National Minimum Wage Legislation.

In respect of the closed season, the claimants argued that the performance of the patrol was a factor tending to establish that the whole of the on-call period was 'time work'.

Decision An Employment Tribunal (ET) concluded that the evening shift in open season was 'time work', as Mr and Mrs Frudd were required to undergo often extensive duties.

These included showing around prospective customers, welcoming late arrivals, giving out keys to visitors, responding to alarm calls and dealing with noise complaints.

Importantly, the Judge noted that these tasks had a 'marked effect' of Mr and Mrs Frudd's leisure time.

The night shift, however, was not 'time work' as they were merely 'on standby'.

No finding was made regarding the morning shift. With regards to the closed season, the ET concluded that they were not doing 'time work' whilst on-call, as the caravan park was very quiet during this time and call-outs were very rare.

Mr and Mrs Frudd appealed the decision and, whilst the Employment Appeal Tribunal (EAT) referred the question of the morning shift back to the ET to make a finding on this time, the EAT upheld the decision about the other shifts, including the closed season.

During the closed season, the specific duties which the claimants had to undertake over the period as a whole were entirely consistent with availability for work coupled with an occasional requirement to work.

The ET had therefore been plainly entitled to conclude that the closed period, when the caravan park was shut, did not constitute 'time work' unless the claimants were engaged in some actual activity, such as the security patrol.

Best Practice

There have been a lot of cases recently about on-call workers and the Frudd v Partington Group case further highlights the difficulties in establishing what counts as 'time work'.

The difficulties look set to continue and the case additionally emphasises that each individual case will be judged on its own facts.

It is important therefore that you seek advice about the remuneration of on-call workers if this is relevant to your organisation.

For further information, please contact Kathy Halliday in our Employment Law Team on 0121 227 3711.