The Claimant was employed as a sleep-in assistant with the Respondent which was a charitable organisation offering accommodation for persons over the age of 55. She was entitled to be asleep during the night - if there was an emergency she would be called upon to undertake active duties but otherwise she was entitled to do nothing. For the periods when she was called into action during a night duty she was paid at or above the national minimum wage. However, otherwise she simply received a lump sum payment for such duties and it was common to the parties that, dividing that sum by the number of hours she would have been present produced a figure that was below the national minimum wage. The ET found that the Claimant was undertaking time work throughout the period that she was actually present on the Respondent's premises pursuant to her contract and therefore that she was entitled to the national minimum wage for those periods. One of the main observations was that the Claimant was required to be on the premises as the Respondent had made representations that the residents could rely on someone being on the premises - that would be a powerful indicator that the Claimant was being paid simply to be there and thus deemed to be working regardless of whether active work is actually carried out. She was awarded over £24,000 in back pay. The Respondent appealed.

The EAT allowed the appeal. The first ground of appeal, which hinged on whether it was open for the ET to conclude that someone would be on the premises at all times, was rejected - there was ample material on which the ET could conclude that the Respondent represented to potential residents that there would be 24 hour cover provided by a sleep-in worker. However where the EJ had erred was in the very absence of any close consideration of the terms of the contract indicating that he did not take it as a starting point in the way he should have done in the light of Focus Care, and had instead largely proceeded by way of analogy with Esparon.