Burrow Down Support Services Ltd v Rossiter EAT/0592/07

national minimum wage | time work | time sleeping

The Employment Appeal Tribunal (EAT) has upheld an employment tribunal decision that an employee who was allowed to sleep for much of his shift, but had to deal with anything untoward that might arise, was entitled to be paid the national minimum wage for the whole shift.

Mr Rossiter worked for Burrow Down Support Services Ltd between November 2001 and July 2006. He attended work from 10pm to 8am, two nights a week. His job involved ensuring the security of the premises and monitoring health and safety. Apart from a quarter of an hour for a handover and an hour to help with breakfasts he could sleep, except where his duties required him to be awake, for example if he needed to investigate noises or deal with anything untoward. He was paid £20 per night for being present, with a separate payment made for when he was awake and working. An employment tribunal upheld his claim that Burrow Down had breached its obligation to pay the national minimum wage. Burrow Down appealed.

It was accepted that Mr Rossiter fell within the category of someone doing time work, which is defined in reg.3 of the National Minimum Wage Regulations 1999. The issue was whether he should have been paid the national minimum wage for the whole of the shift, including the time that he was asleep. Under reg.15 of the Regulations time work includes time when “a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work”. Regulation 15 is subject to reg.15(1A), which states that where a worker can sleep at work and is provided with sleeping facilities, time during the hours that the worker is permited to use the facilites should “only be treated as being time work when the worker is awake for the purpose of working”.

The EAT referred to British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002] IRLR 480 CA and Scottbridge Construction Ltd v Wright [2003] IRLR 21 CS. In Scottbridge the Court of Session rejected an argument by the employer that a period when the employee was asleep should not be treated as time work. Burrow Down argued that these cases were decided under a pre-amended version of reg.15 and therefore no longer applied. It was argued that previously the sleeping at work provision that is now in reg.15(1A) was stated to be an exception, whereas this was no longer the case. However, the EAT disagreed. By reg.15(1) beginning “subject to paragraph 1A” it was clear that reg.15(1A) qualifies the effect of reg.15(1). It does not qualify the definition of time work in reg.3 and has no impact on periods of actual work. Scottbridge and British Nursing still applied. Mr Rossiter was at work for the whole of his shift, and, like the claimant in Scottbridge, he had to deal with anything that arose during his shift, even if he was able to sleep. This was not a case where he was deemed to be at work while only available to work. Therefore, neither reg.15(1), nor reg.15(1A) was engaged. Scottbridge should be followed and Mr Rossiter should be paid the national minimum wage for the whole of his shift.

Case transcript of Burrow Down Support Services Ltd (Microsoft Word format, 61.5K) (on the EAT website)

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