A recent case (The Governing Body of Binfield Church of England Primary School v Roll) examined how the number of hours worked by an 'on call' employee should be calculated in the context of the National Minimum Wage.

Mr Roll was employed as a school security guard. He was required to live on the school premises and to respond to alarm calls day and night.

Although his contract of employment stated that his normal working week would be 39 hours with the possibility of further hours paid as overtime, Mr Roll argued that he was, in practice, on call 24 hours a day, including at weekends. He was obliged to live in a bungalow in the school grounds and had been issued with a mobile phone that was linked to the school's alarm system, to which he was required to respond at all times.

The Employment Tribunal (ET) upheld his complaint that he had suffered unauthorised deductions from his wages and the school's governors were ordered to pay him more than £80,000 in compensation. That was on the basis that, when all of his working hours were computed, he had been paid less than the hourly rate required by the National Minimum Wage Regulations 1999.

In upholding the governors' challenge to that decision, however, the Employment Appeal Tribunal (EAT) found that the ET had failed to take into account a number of factors that ought to have been explained. Amongst other things, the school would never have disciplined Mr Roll for being away from the premises outside his shift periods.

When not on shift, he was permitted to absent himself from the school so long as he was sufficiently nearby to deal with any emergencies which might arise. He was able to, and did, attend social functions off the school's premises, even if he might be called back from those functions, and he was able to go away at weekends, provided notice was given, without taking that period as holiday.

In addition, the school was under no statutory duty to have someone on the premises at all times, and emergencies in fact arose quite rarely.

In those circumstances, the matter was remitted to the same ET to consider whether those factors were material.

For more information on this or any other employment matter, please contact Jade Linton on 0121 746 3300 or email j.linton@sydneymitchell.co.uk

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