Burrow Down Support Services Ltd v Rossiter

Factual and Procedural Background

The Plaintiff commenced employment with the Defendant Company A in November 2001 as a night sleeper, working two nights a week from 10.00 p.m. to 8.00 a.m. His duties included ensuring the security of a care home for people with learning difficulties, monitoring health and safety, and being accessible for emergencies. The Plaintiff was required to be awake for a brief handover and to assist with breakfasts but was permitted to sleep during other times unless his duties required otherwise.

The employment contract provided a fixed payment described as a nightly rate for sleeping, which was later increased. Additional payment was made for time when the Plaintiff was awake and working, although the Plaintiff was not informed of this right until March 2006. The Plaintiff was dismissed on 19 July 2006 and brought claims for unfair dismissal and breach of the National Minimum Wage Act 1998. The Tribunal found unfair dismissal but that finding is not appealed. The Tribunal also found that the Defendant failed to pay the Plaintiff the national minimum wage for all hours worked, which the Defendant appealed. The Plaintiff cross-appealed on a contractual payment issue.

Legal Issues Presented

1. Whether the Plaintiff was entitled to be paid the national minimum wage for all hours of his night shift, including periods when he was permitted to sleep at work.
2. The proper interpretation and applicability of Regulation 15(1A) of the National Minimum Wage Regulations 1999, as amended, concerning time work and sleeping at or near the place of work.
3. Whether the fixed payment described as a sleeping allowance formed part of the basic pay for minimum wage calculation or was a separate contractual entitlement.

Arguments of the Parties

Appellant's Arguments (Defendant Company A)

• The Defendant contended that they were only obliged to pay the Plaintiff the minimum wage for the hours during which he was actually awake and working, not for the time he was permitted to sleep at work.
• They argued that the amended Regulation 15(1A) excludes sleeping time at or near the workplace from being counted as time work unless the worker is awake for working purposes.
• The Defendant submitted that the prior authorities relied upon by the Plaintiff were decided under the original version of Regulation 15 and were therefore not applicable to the amended regulation.
• Regarding the cross appeal, the Defendant argued against allowing the contractual payment point to be raised at this stage.

Appellee's Arguments (Plaintiff)

• The Plaintiff contended that he was entitled to be paid the national minimum wage for every hour of his shift, including the sleeping periods, because he was required to be present and available throughout.
• He relied on prior case law holding that workers required to be on premises for the entire shift are working for the whole period, even if asleep during some hours.
• On the cross appeal, the Plaintiff argued that the fixed sleeping payment was an attendance allowance separate from basic pay, and he was entitled to both that and the minimum wage for all hours.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the relevant provisions of the National Minimum Wage Act 1998 and the National Minimum Wage Regulations 1999, focusing on regulation 15 and its amendment in 2002. The court noted that regulation 15(1) is subject to paragraph (1A), which excludes sleeping time at or near the workplace from being counted as time work only when the worker is permitted to sleep and is actually sleeping.

The court rejected the Defendant’s submission that the amendment fundamentally altered the law. It found that regulation 15(1A) qualifies regulation 15(1) but does not affect periods of actual work. Since the Plaintiff was required to be on premises and available to respond to emergencies throughout the shift, including sleeping periods, he was considered to be working for the whole duration.

The court relied heavily on the reasoning in British Nursing Association and Scottbridge Construction, which held that workers required to be on duty for an entire shift are working for the whole period, regardless of periods of inactivity or sleep, and that regulation 15 applies only to periods when a worker is available but not actually working.

Regarding the cross appeal on contractual payments, the court found the argument that the fixed sleeping payment was a separate attendance allowance without merit. It noted the contradiction in the Plaintiff’s position and held the payment was part of the consideration for the work performed, not a separate bonus or allowance.

Holding and Implications

The court DISMISSED both the appeal and the cross appeal.

The direct effect is that the Defendant must pay the Plaintiff the national minimum wage for all hours of his shift, including the periods when he was permitted to sleep but required to be present and available. The court reaffirmed established principles from prior case law and did not introduce new legal precedent. The cross appeal concerning the contractual payment was also rejected, confirming that the fixed sleeping payment forms part of the basic pay for minimum wage purposes.