Are “On-Call” Staff Entitled to Minimum Wage?

Wednesday 29 May 2019

Holiday and residential parks across the country are regularly staffed overnight by employees who are “on-call”.

Whether or not workers who are on-call are entitled to be paid is an issue which has been heavily contested in the Employment Tribunal (ET), and the Employment Appeal Tribunal (EAT), for some time.

However the EAT has recently provided some welcome guidance on this matter in the case of Frudd v The Partington Group Ltd.

The Case concerned employees working on a holiday park who were required to be on-call after their shifts ended (typically late-afternoon/early evening) until 8am the following morning.

The EAT found that the employees were working, as their responsibilities included showing prospective customers around the park and welcoming late arrivals. However, they were not required to perform these duties after 10pm.

Accordingly, they were entitled to be paid the National Minimum Wage for the period after their shift had finished until 10pm: they were truly on-call until the expectation to show customers around ended.

From 10pm until 8am they were not entitled to pay as they were not required to perform any duties after 10pm. The employees were not working for the purposes of ‘working time’ and were merely on-call for emergencies. Therefore they would only be paid if actually called out.

In this case, the exception for sleep-in workers didn’t apply as the employees returned to their homes for the duration of the on-call period.

What does this mean for you?

Whether or not you will be required to pay your on-call staff will ultimately depend upon the nature of their work.

If your park is staffed overnight by a Warden or Receptionist who is on-call and their duties include, as in Frudd, assisting prospective customers and showing late arrivals to their accommodation, it is likely that you will have to pay them for the period during which they are required to perform those duties.

However if you have an employee on-call overnight for emergencies, depending on their sleeping arrangements and call-out frequency, it is unlikely that they will be entitled to receive pay.

If you have any questions about whether you are obliged to pay your on-call employees, or require advice in relation to another employment/HR matter, please contact us today for a no obligation discussion.