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‘On Call’ Workers and the National Minimum Wage

PLEASE NOTE: Information in this article is correct at the time of publication, please contact DFA Law for current advice on older articles.

How are the number of hours worked by ‘on call’ employees to be calculated in the context of the National Minimum Wage? A tribunal tackled that thorny issue in the case of a school security guard who was required to live on the premises and to respond to alarm calls day and night.

Although the man’s contract stated that his normal working week would be 39 hours, he argued that he was in practice on call 24 hours a day, including at weekends. He was bound to live in a bungalow in the school grounds and had been issued with a mobile phone that was linked to the school’s alarm system, to which he was required to respond at all times.

After he lodged a complaint, an Employment Tribunal (ET) found that he had suffered unauthorised deductions from his wages and the school’s governors were ordered to pay him more than £80,000 in compensation. That was on the basis that, when all of his working hours were computed, he had been paid less than the hourly rate required by the National Minimum Wage Regulations 1999.

In upholding the governors’ challenge to that decision, however, the Employment Appeal Tribunal (EAT) found that the ET had failed to take into account a number of material factors. Amongst other things, the school would never have disciplined the man for being away from the premises outside his shift periods.

When not on shift, he was permitted to absent himself from the school so long as he was sufficiently nearby to deal with any emergencies which might arise. The school was under no statutory duty to have someone on the premises at all times and emergencies in fact arose quite rarely. In those circumstances, the matter was sent back to the same ET for reconsideration in the light of the EAT’s ruling.

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