Esparon v Slavikovska [2014] UKEAT 0217_12_0805 (8 May 2014)

The Claimant was employed as a care worker at the Respondent’s residential care home. She was required to work a number of ‘sleep-in’ night shifts and be available for emergency purposes. Under Regulation 18 of the Care Home Regulations 2001 (‘the Regulations’), the Respondent was required to ensure that at all times suitably qualified, competent and experienced persons were working at the care home in such numbers as were appropriate for the health and welfare of their service users.

The Claimant maintained that she was required to carry out certain duties during the night shift, whereas the Respondent maintained that she was not required to carry out any duties save in case of emergencies, and was permitted to sleep in the facilities provided. Whilst the Claimant received a lump sum for each sleep-in shift (£25 for a 10 hour shift), this was at a rate substantially less than the hourly rate of the National Minimum Wage. The Claimant claimed that she was entitled to be paid the National Minimum Wage because she was carrying out ‘time work’ as defined by section 1(1) of the National Minimum Wage 1998, and regulations 3 and 15 of the National Minimum Wage Regulations 1999. The Claimant submitted her case on the following two grounds:

1.       she was required to work during her sleep-in shift, and

2.       she was entitled to be paid simply for being present at the Respondent’s premises.

The Employment Tribunal found in favour of the Claimant on both grounds. On appeal, the Employment Appeal Tribunal upheld the decision on both grounds by finding that the Claimant was entitled to be paid simply for being at the Respondent’s premises. The Claimant’s presence had constituted time work.

The Tribunal held that an important consideration was why the employer required the employee to be on the premises. If he required the employee to be on the premises pursuant to a statutory requirement to have a suitable person on the premises ‘just in case’, this would be a powerful indicator that the employee was being paid simply to be there and was thus deemed to be working, regardless of whether work was carried out.

The Tribunal concluded that the Claimant was engaged in time work on two separate but independent bases. Firstly, they found that the Claimant actually worked and carried out duties during the sleep-in sessions and was required to do so. The Claimant’s evidence was that she was not allowed to sleep during night shifts and did a variety of duties during these shifts (including checking residents every 40 minutes to 1 hour, ironing, changing incontinence pads and training new staff at night). This was denied by the Respondent, who said there were sleeping facilities and the Claimant was able to sleep on site but was required to be available for emergency purposes. The Claimant did not give evidence as to when during the night she carried out the duties referred to, but her witnesses suggested that most of the work during the night shifts was carried out between 9pm and 10pm, and between 7am and 9am. This was accepted by the Employment Tribunal. The Respondent’s case was that during the aforementioned periods, staff were paid at their normal rate of pay. However the Employment Tribunal found this was only the case from 7am to 9am. Further, issues as to core hours and job continuations were found to be irrelevant, with the Claimant required to undertake the night shifts that were quite separate to her day job. The Tribunal found that there was no authority for the proposition that the Regulations did not apply if the work in question was not the employee’s main job or an adjunct to it, and therefore needed to constitute part of their core hours. The proper focus was on the task actually carried out. In the present case, the Claimant was paid to be on the premises and also carried out time work. She was accordingly entitled to be paid at the rate of the National Minimum Wage, and therefore the Respondent’s appeal was dismissed.

Secondly, the Claimant’s job when she was required to sleep in on the premises was one where she was entitled to be paid simply for being on the premises, regardless of whether she worked or not, or whether she carried out her regular duties. She was paid simply to be there. This view was support by the Regulations, which obliged the Respondent to have staff available on the premises at all times, and the Claimant was there to fulfil that obligation. She was required to undertake night shifts in pursuance of the obligations placed on the Respondent, and it was essential that she was there even if she did nothing.

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