Wray v JW Lees & Co (Brewers) Ltd
Ms Wray was a temporary pub manager who was provided with free accommodation and, as a term of her employment, was required to sleep in that accommodation every night as a security and preventative measure. Although there was some confusion over the exact figures, it was accepted that, on the basis of hours worked in the pub, Ms Wray was paid above the national minimum wage.
Ms Wray brought a claim against JW Lees alleging that all hours during which she was required to stay on the premises should be taken into account in assessing whether or not she had been paid the national minimum wage. The employment tribunal based its decision on the Working Time Regulations 1998 (SI 1998/1833) and found that these hours should not be taken into account. Accordingly, Ms Wray’s claim was dismissed.
Ms Wray appealed to the Employment Appeal Tribunal (EAT), which noted the tribunal’s error in referring to the Working Time Regulations 1998 rather than the National Minimum Wage Regulations 1999 (SI 1999/584).
The EAT referred to regs.15 and 16 of the National Minimum Wage Regulations 1999, which define working hours. Paragraph (1A) in each regulation states that, where a worker, in arrangement with the employer, sleeps at or near a place of work and is provided with suitable facilities for sleeping, the time during the hours the worker is allowed to use the facilities for sleeping will be treated as being time worked or salaried hours only when the worker is awake for the purpose of working.
The EAT held that JW Lees had not breached the National Minimum Wage Regulations 1999. The requirement for Ms Wray to sleep on the premises did not require her to do any work during that period. This was in contrast to, for example, a night-sleeper in a residential care home or a hotel manager. Even if she did have to call the emergency services in the event of a fire or break-in, the degree of responsibility was minimal in contrast to such comparators.
While the EAT found in the employer’s favour, in order to avoid disputes such as this occurring it is imperative that an employer set out a worker’s obligations clearly in the employment contract. The employer should clearly address the obligation to pay for normal working hours and for the ambiguous hours where a worker is either on call or sleeping on or near the business premises.
One issue that was highlighted in Ms Wray’s favour was that JW Lees did not have a copy of her employment contract. The EAT highlighted that a claim could have been avoided if the parties’ obligations were clearly set out in writing and communicated to Ms Wray in an open manner and in a way she would understand. This case serves as a warning to employers like JW Lees that directly employ staff in temporary positions, but who do not keep up to date with paperwork.
Alan Chalmers, DLA Piper
Practical guidance from XpertHR on the national minimum wage