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Issue 77 (February 2003)

Contents

Night nurses bank minimum wage

British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) [2002] IRLR 480 CA

The National Minimum Wage Compliance Team is an arm of the Inland Revenue charged with the task of enforcing the minimum wage with extensive powers to bring infringing employers to the Tribunal. It has had a remarkable track record of success with well selected and well prepared cases. The result is greater compliance with the NMW, more money for workers and more tax and NI revenue for the Treasury.

British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team) concerned workers who operated a telephone booking service for a bank nurse agency. During the day the service was conducted from the employer's premises, but the night shift worked from their homes. The calls were diverted to the night "duty nurse" who would take the call and book the nurse. The workers were paid an amount per shift.

The employers considered that the staff were not working when they were not actually answering the phone and therefore not entitled to the minimum wage during these periods. Their pay therefore fell below the level of the minimum wage if calculated over their entire shift period. The nurses and the NMW Compliance Team disagreed.

A worker is entitled to be paid at least the rate of the NMW for all periods of "time work". The NMW Regulations as they then were provided that "In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purposes of doing time work, and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purposes of working".

So the employer's argument was that the night shift staff were not actually working apart from the time on the phone and, as they worked from home, were excluded by Regulation 15(1) from pay for the other periods.

The Employment Tribunal, the Employment Appeal Tribunal and now the Court of Appeal disagreed. Cutting right to the heart of the issue and with an enviable clarity the Court of Appeal stripped the fallacy of the employer's argument bare. The truth of the matter is that an employee engaged to operate a night-time telephone service from home is "working" when waiting to answer the phone. It would not be argued that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to remuneration, during periods when he or she was actually on the phone. It was no different at night when the same service was being provided.