Pay - Statutory minimum - Employee working as temporary pub manager

Wray v JW Lees & Co (Brewers) Ltd: Employment Appeal Tribunal (Mr Justice Underhill, Mrs R Chapman, Dr K Mohanty): 14 July 2011

The employee was employed as a temporary pub manager. Her job required her to run pubs owned by the employer brewery, during which time she would often be contractually required to sleep on the premises. She brought a claim to the employment tribunal (the tribunal), stating that, inter alia, the time she spent sleeping on the premises ought to be included in assessing whether she had been paid the national minimum wage.

The tribunal considered the issue by reference to the definition of 'working time' in the Working Time Regulations 1998, SI 1998/1833. It held that the time she spent sleeping on the premises ought not to be considered. The employee appealed to the Employment Appeal Tribunal.

Two issues arose: (i) whether the tribunal had correctly directed itself as to the law; and (ii) whether the employee could have been said to have been working during the periods where she had been required to sleep on the premises. The appeal would be dismissed.

(1) On the facts, the tribunal had erred in referring to the Working Time Regulations. The issue ought to have been determined exclusively by referring to the relevant provisions of the National Minimum Wage Regulations 199, SI 1999/584 (see [5] of the judgment).

(2) On the facts, it was clear that the employee had not actually been working during the periods where she was on the premises overnight but not actually at work. The requirement that she sleep on the premises did not require her to do any work during that period. There was no analogy to be drawn between the employee and a night-watchman or night-sleeper in a residential care home who would have a responsibility throughout the night to those in the home (see [12], [13] of the judgment).

The employee could not have been said to have been working during the periods where she remained on the premises but was not actively at work (see [13], [14] of the judgment).

John Hobson (instructed by Oldham Law Centre) for the employee. P Mooney (solicitor) of Employment Law Advisory Services Ltd for the employer.