Frudd and Frudd v The Partington Group Ltd EA-2019-000725-RN

Judgment relating to an appeal against a decision which found that two claimants had not completed “time work” during a one-hour period for which they were on call for the purposes of Regulation 30 of the National Minimum Wage Regulations 1999.

The Claimants were employed as a warden and a receptionist at the Respondent’s caravan site. Both worked shifts and were required to be “on call” for a few days each week. Their contracts provided for payments between the hours of 10pm and 7am during the periods on which they were on call, but not for between 7am and 8am (the morning hour). The Claimants argued that during the morning hour, they were completing “time work” within the scope of Regulation 30 of the National Minimum Wage Regulations 1999. This was rejected by the Employment Tribunal (ET). The Claimants appealed on the basis that the ET has erred in law by failing to apply the statutory presumption that a worker is to be paid less than the national minimum wage unless it is proven otherwise, under section 28(2) of the National Minimum Wage Act 1998.

The Employment Appeal Tribunal dismissed the appeal. The Claimants had not been required by the ET to prove their case on the basis of the national minimum wage and they had not produced any evidence of the work they had carried out during the morning hour. The ET had sufficiently reviewed the position based on the facts that had already been established and taken into taken account of all the relevant factors in reaching its conclusion. The EAT held that this approach was not the same as failing to consider the statutory presumption.

Published: 10/09/2021 13:05

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