The claimants were resident housing support workers whose role it was to support sheltered housing tenants in living independently. They were effectively wardens who occupied tied accommodation which they were free to use as their home. Part of their job was to provide emergency response while on duty and at night.

The contracts set out a normal working week of 36 hours which worked out as 8.30am to 5.30pm, Monday to Friday. There was some flexibility as to how the wardens fitted in their 36 hours. They were paid their core hours and had additional pay, or time off in lieu, for time spent on each call-out. They were not paid for time when they were on-call but were not called out.

The wardens claimed that all time spent on-call was working time and, that being so, their pay fell short of the National Minimum Wage. The employment tribunal agreed but the Employment Appeal Tribunal (EAT) took a different view. It said that only time spent actually working while on-call counts as working time.

It might have been different, the EAT said, if all that a warden was required to do was to be available during the night to be called on if required. But here there were core working hours (8.30 to 5.30pm). The wardens' main job was made up of those hours and that was separate from the on-call hours.

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