Minimum Wage: Is being on-call considered ‘time-work’, and therefore minimum wage applies?

This was the question before the EAT in Frudd & Frudd v The Partington Group Ltd UKEAT/0240/18/OO. The Claimants, Mr and Mrs Frudd, were a warden/receptionist team who worked at a caravan site. During the open season they worked shifts which finished between 4.30pm and 8pm and were expected to be on-call afterwards on two or three nights a week until 8am the following morning. The Claimants argued that whilst on-call they were working on "time work" and so entitled to be paid the National Minimum Wage. According to the legislation, workers paid according to the number of hours they are at work are classed as doing ‘time work’. For these workers, the average hourly pay has to be at least the National Minimum Wage, worked out over the period each pay packet covers - so for a worker who gets paid once a month, this period will be 1 month. (The sleep-in exception in the Mencap case did not apply because this was not a sleep-in situation.)

Although the Claimants had sought a finding in respect of the whole time on call, the Employment Judge made a distinction. He found that the night period (10pm - 7am) was not time work. The Claimants appealed the rest of the time (from the end of the shift until 10pm). The Employment Judge found that for this period they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. They were therefore entitled to be paid the NMW for that period.

The Claimants were not, however, required to carry out that work after 10pm, unless they were called out for an emergency for which they were paid. After 10pm, they were therefore not working on time work unless called out, and so were merely available for work, and were not entitled to be paid whilst merely on-call.

Published: 29 April 2019

Article Sections: Payments during Employment

Tags: minimum wage, time work


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