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Employment Appeal Tribunal Outcome

Employment Appeal Tribunal Outcome

An employment tribunal between the live-in warden & receptionist husband and wife team and their former employer was heard in Manchester Court on the 17th October 2018.

The claimants, Mrs Janet Frudd & Mr Ian Frudd, brought forward a claim against the Partington Group Ltd, owners of the caravan site, Broadwater Park, near Fleetwood, a coastal town in Lancashire. Their claim alleged that they had not been paid the national minimum wage for their working hours at the caravan park due to the number of extra hours that were expected of them outside of their day-shift time.

The husband and wife team worked at the caravan park from 2008 to 2015 as one of three live-in warden/ receptionist teams working on shift to manage the administrative duties of the reception desk of the caravan park and to conduct evening security checks during the closed season.

The Judge of the case, Employment Judge Horne, sitting in the Manchester Employment Tribunal, heard that on either two or three days of the week, the Claimants were expected to be on call after their day-time shift ended. The site had an open season running from March to November and a closed season from December to February. During the open season, the Claimants’ day shift finished at 5 pm and during the open season at 8 pm. During the closed season, the gates to the park are locked at 4.30pm, and the Claimants’ normal working hours ran from 8 am to 4.30pm. However, Mr Frudd was expected and required to undertake a security check of the park in the evening during the closed season. There was no specific payment for this activity.

During the open season, the caravan park was open 24-hours a day. Their day-shifts ran from 8 am to 8 pm during this time. From 10 pm to 7 am, the Claimants were expected to be on call for emergency call-outs, during which time, they were entitled to payment for call-outs at a payment of £7.50 per person per call-out.

The Employment Judge set the period of on-call between shifts into three sections. The first section ran from the end of the claimants’ shift to 10 pm, where the Claimants were required to carry out a number of tasks such as; showing around prospective customers; welcoming late arriving guests; giving keys to visitors who were subletting owned caravans; conducting an evening check if security guards were not present; dealing with incidents, unruly behaviour etc; responding to alarm calls and on one occasion, parking a tractor across the main site guests until potential trespassers had moved on. The second block of time ran from 10 pm to 7 am when very few call-outs were necessary, but an expectation was contracted that if a call-out was made when the Claimants were taking their rotation on call, they would respond- and would be paid per call out. The third block of time referred to the 7 am to 8 am block, when the on-call provision had ended but the day-shift had not yet begun.

The employment tribunal Employment Judge found that the period after 10 pm was justified as ‘stand by’ to work and that the expectation did not negatively affect the Claimants’ leisure time and that the Respondent was justified to pay a call out charge as was contracted.

The Employment Tribunal heard a claim by Mrs & Mr Frudd for the whole period from the end of the day shift until 8 am the following morning. Therefore, although the time between 7 am and 8 am were not expressly mentioned by the Claimants in their application to the Employment Tribunal, they could not have expressly mentioned this time as in the initial application, the time frame was viewed as a whole, not as three parts as it was when examined by the Employment Judge.

The Employment Judge found that for the time that the Claimants were carrying out their duties between the end of their day shift and 10 pm, their activities should have been considered as working on time work for the purposes of National Minimum Wage.

Mrs & Mr Frudd appealed the decision brought by the Employment Tribunal Judge.

At the Appeal hearing, on the 11th February 2019, His Honour David Richardson, was able only to comment on the case as an appeal to the question of law- not to comment upon if the outcome of the ET was correct, but whether there was evidence that the law had not been upheld.

The Appeal concluded that the Employment Judge was acting appropriately when he split the time frame into 3 sections. He agreed with the handling of both the ‘evening’ time- after the day shift and pre-10pm where the ET found the Claimants should have been paid the National Minimum Wage and that the ‘night-time’ between 10 pm and 7 am was appropriately justified by the Respondent. What was missing, was any reference to the time frame from 7 am to 8 am. As such, the case has been referred back to the Employment Tribunal to be resubmitted and that the Employment Judge must reconsider the early morning time frame.

 

If you are considering an issue with an employer or a previous employer and require the support of our employment team, in the first instance, please contact Vaishali Thakerar by calling 0116 212 1000 or via email: vthakerar@lawson-west.co.uk

This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.

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