Coffin Mew's Employment News

“His insomnia was so bad, he couldn’t even sleep during office hours.”

Arthur Baer

“Of all the things I’ve ever lost, I miss my mind the most.”

Mark Twain

Welcome

Firstly, ladies and gentlemen, please accept my apologies for the late submission of this week’s ramblings. I’m afraid that I made a bit of faux pas. You see, I took the hard copy of this article with me to the pub, as the current Mrs Tibble and I were dining with close friends. At the end of the evening, I returned to Tibble Towers in one car, accompanied by my bodyguards. My good lady wife returned home in another car with our friends – I assumed that she had picked up the copy of my article and funnily enough, Mrs T had assumed that I had the article with me.

It only dawned on us when we got home that we had both left the article all alone in the pub! Thankfully, we called the pub and they had found the article and were looking after it. We rushed back to the pub and were reunited with our lost article – what a relief. The article had only been away from us for 15 minutes. Can you imagine how stupid I felt? At least I’m not in charge of the country ……….

Right, enough of my amateur attempts at political satire. Let’s have a look at this week’s case, which is ironically about sleeping at work, because there’s probably a good chance that you will be, by the time you get to the end of my wittering.

The Legal Bit

There has historically been an awful lot of litigation about whether live-in workers are entitled to receive the national minimum wage for periods when they are "on call", i.e. not actually working, but available for work. The recent case of City of Edinburgh Council v Lauder and others considered this issue further.

As you will know, workers are legally entitled to receive a minimum hourly rate of pay, called the national minimum wage. However, when it comes to calculating if a worker is actually receiving the national minimum wage, things can get a bit more complicated.

This is particularly the case because an employees’ working time not only includes the time actually spent working; it also includes time when an employee is available at their place of work and is required to be available for work. In addition, where a worker sleeps at their place of work and is provided with suitable facilities for sleeping, the only time that counts as work for national minimum wage purposes is the time that the worker is awake for the purpose of working.

In the Lauder case, a number of claimants were employed by the City of Edinburgh Council (the Council) as sheltered housing wardens. The claimants had tied houses close to accommodation units for elderly people and their job meant that they had to be present in their houses for 36 hours a week, between 8.30 am and 5.30 pm from Monday to Friday. The claimants were also required to be "on call" outside their normal working hours.

As with most warden schemes, the accommodation units for the elderly service users had an alarm connected to the claimants’ homes by way of a hand held device. The claimants were allowed to return their hand held devices back to the Council each evening, but they had to collect them back by midnight on four nights of the week when they were required to be available overnight for alarm call outs. If they were called out to respond to an alarm call during the night, the claimants could claim overtime pay or time off in lieu.

The case arose when the claimants complained that they were not receiving the national minimum wage. This was based on the fact that they believed that the time during the four nights that they had to be available for alarm call outs should be counted as paid work.

The claimants won.

The employment tribunal agreed with the claimants because it decided that they were actually at work as opposed to just being "on call".

The Council appealed against the tribunal's decision to the Employment Appeal Tribunal (EAT).

The Council won.

The EAT agreed that the claimants were actually at work during the nights that the alarm system was connected to their accommodation. However, the EAT also decided that the claimants were provided with suitable facilities for sleeping. The EAT also decided that the claimants were not required to be awake unless they had to answer an alarm call. In conclusion, the EAT criticised the original employment tribunal because it had treated the employees as working as opposed to being on call. Therefore, under the rules, it was only the hours that the employees were awake and dealing with alarm calls that had to be taken into account for national minimum wage purposes.

The Lauder case is interesting because it clarifies that a worker who is required to actually work through the night should be entitled to take all of those hours into account when establishing whether they are receiving the national minimum wage. The obvious sort of worker would be a night watchman or security guard. However, if a worker is simply on call during the night and not required to perform their normal job during this period, then it would only be the time that the employee is actually awake and doing some work that would be taken into account for the purposes of the national minimum wage.

As an aside.....

You will be delighted to hear that I am on annual leave next week, so there will be no legal musings from me.

As such, I think that it is only fair to treat you to a couple of genuine legal transcripts to keep you going until my return. Enjoy!

- What was the first thing your husband said to you when he woke up that morning?

- He said, “Where am I, Cathy?”

- And why did that upset you?

- Because my name is Susan.

And finally

- James stood back and shot Tommy Lee?

- Yes.

- And then Tommy Lee pulled out the gun and shot James in the fracas?

- No sir, just above it.