Minimum Wage: Sleeping on the Job

[Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary]

The EAT (Underhill P) has handed down its decision in Wray v JW Lees & Co, which is authority for the proposition that whether time spent by a temporary pub manager on the employer's premises overnight fell to be taken into account for the purpose of being paid the national minimum wage depended solely on the relevant provisions of the National Minimum Wage Regulations 1999.

The employment tribunal had, in error, directed itself to the definition of working time in the Working Time Regulations 1998, which had no application in the context of a national minimum wage claim. Instead of remitting the case, the EAT was able, using the right legislation, to determine the claim on the facts found by the employment tribunal.

On these findings it was clear the claimant was not working during the periods in question and could not therefore call these into account into account for the purposes of a national minimum wage claim. The exceptions in regs 15 (1A) (time work) or 16 (1A) (salaried hours work) of the NMWR applied. The requirement to sleep at the premises did not require the employee to do any work and her position could be distinguished from that of night watchman or night sleeper in a residential home, who had responsibilities throughout the night (see South Manchester Abbeyfield v Hopkins [2011] ICR 254).