Working Time Regulations and the National Minimum Wage Act

Laws such as the Working Time Regulations and the National Minimum Wage Act tend to get overlooked by people in the context of employment law, in favour of “sexier” subjects such as discrimination. However, these rather bread and butter laws have an enormous effect on a large proportion of the country’s working population. As a result, I would like to look at these laws in a little more detail, but from a more practical perspective.

M was employed as a care manager for a sheltered housing estate for the over-sixties. She was provided with a flat on the estate and had to work four days a week providing 24 hour onsite cover. Most of her work was done between 8am and 6.30pm but the idea was that she would be available in the night if a resident had a problem. She had to have a mobile phone switched on and had to be no more than three minutes away from the estate when she was on duty. This meant she could work in the day and sleep at night but if a resident had an emergency and called her, she had to respond. On average, she would get one call from a resident between the hours of 6pm and 8am every other night when she was on duty. She was paid £8,750 a year and lived in her flat rent and expenses free.

Although this example is based on the facts of a recent case, I’m sure you’ll agree that the same circumstances apply to many people for whom being “on call” is an important part of their job.

Under the Working Time law, workers are entitled to 11 hours’ consecutive rest in each 24 hour period and to a break of at least 20 minutes when the working day exceeds 6 hours.

M argued that all the time she was “on call” she was officially working, even though she might be actually asleep at the time. Because there were no periods when she was not “on call”, she said that her employer was in breach of its obligations to ensure she was getting the rest to which she was legally entitled.

M also said that, because she was working the whole time she was “on call”, her working week amounted to 96 hours and so as a result her hourly rate fell below the National Minimum Wage.

The Tribunal followed previous European decisions and decided in favour of M. It found that the entire time M was available for work at the bidding of her employer – in other words “on call” – she was in fact “working” for the purposes of Working Time and Minimum Wage Law. This meant that her working week did amount to 96 hours and she was not receiving her required rest breaks. Similarly, the correct means of calculating M’s pay was to calculate her weekly wage and divide it by 96. Unsurprisingly, this also meant M’s employer was in breach of the minimum wage requirements.

Whilst one can see the legal arguments behind the Tribunal’s decision; M had to make herself available for work 24 hours a day and so her ability to carry out her own activities was curtailed. To a certain extent it is right that she should be compensated accordingly.

However, a certain amount of common sense surely has to come into play. When M did not receive any calls she was fast asleep in her own bed. Can it really be right to say as a result that she wasn’t getting her rest, as prescribed by law?

Regardless of any personal feelings, that is the current legal position. The practical advice for any employers who have “on call” staff is therefore to review your contracts to make sure they comply with these bread and butter laws.

Published 27/09/2006.