The Claimants, husband and wife, worked as receptionist and warden at a caravan site operated by the Respondent, where they were also required to reside. As well as having regular working hours, they were required to be “on call” on certain days from the evening until 8am the next day. Whilst their contracts provided for emergency callout payments during the period from 10pm to 7am, no such provision was made for the period from 7am to 8am (“the morning hour”).
The issue before the employment tribunal was whether the Claimants were doing time work during the morning hour within the meaning of Regulation 30 of the National Minimum Wage Regulations 1999 (“the 1999 Regulations”). The tribunal concluded that they were not. The Claimants contend that in so doing, the tribunal erred in law and had failed to apply the statutory presumption under s.28(2) of the National Minimum Wage Act 1998 that the worker was paid less than the NMW unless the employer establishes otherwise.
Held, dismissing the appeal, that the employment tribunal had not required the Claimants to prove their case on NMW. In the circumstances of this case, where factual determinations had been made at a previous hearing and the parties had agreed not to adduce any further evidence, the tribunal had not erred in reviewing the position in order to determine whether the claim was made out. Such an approach did not, in the circumstances, amount to a failure to apply the statutory presumption. In deciding that the Claimants were not doing work during the morning hour, the ET did not treat any single factor as determinative. On the contrary, on a fair reading of the judgment, the ET took account of all relevant factors and reached a conclusion that was open to it on the evidence.
Matthew Purchase QC was involved in this case.