Mrs J Frudd and Mr I Frudd v The Partington Group Ltd EA-2019-000725-RN (previously - UKEAT/0193/20/RN)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice Choudhury |
| Subject Matter | Not landmark |
| Court | Employment Appeal Tribunal |
| Published date | 03 September 2021 |
Judgment approved by the court for handing down Frudd v Partington Group Ltd
Page 1 EA-2019-000725-RN
© EAT 2021
Appeal No: EA-2019-000725-RN
(Previously UKEAT/0193/20/RN)
EMPLOYMENT APPEAL TRIBUNAL
Rolls Building
Fetter Lane, London, EC4A 1NL
Date: 3 September 2021
Before :
THE HONOURABLE MR JUSTICE CHOUDHURY (PRESIDENT)
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Between :
MRS J FRUDD &
MR I FRUDD
Appellants
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THE PARTINGTON GROUP LIMITED Respondent
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Mathew Purchase QC (instructed by Advocate) for the Appellants
Assunta del Priore (instructed by Napthen Solicitors) for the Respondent
Hearing date: 20 April 2021
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JUDGMENT
Judgment approved by the court for handing down Frudd v Partington Group Ltd
Page 2 EA-2019-000725-RN
© EAT 2021
SUMMARY
NATIONAL MINIMUM WAGE
The Claimants worked as receptionist and warden at a caravan site operated by the Respondent.
As well as having regular working hours, they were required to be “on call” on certain days
from the evening until 8am the next day. Whilst their contracts provided for emergency call-
out payments during the period from 10pm to 7am, no such provision was made for the period
from 7am to 8am (“the morning hour”). The issue before the ET was whether the Claimants
were doing time work during the morning hour within the meaning of Regulation 30 of the
National Minimum Wage Regulations 1999 (“the 1999 Regulations”). The ET concluded
that they were not. The Claimants contend that in so doing, the ET erred in law and had failed
to apply the statutory presumption under s.28(2) of the National Minimum Wage Act 1998 the
worker was paid less than the NMW unless it is established otherwise.
Held, dismissing the appeal, that the ET had not required the Claimants to prove their case on
NMW. In the circumstances of this case, where factual determinations had been made at a
previous hearing and the parties had agreed not to adduce any further evidence, the ET had not
erred in reviewing the position in order to determine whether the claim was made out. Such an
approach did not, in the circumstances, amount to a failure to apply the statutory presumption.
In deciding that the Claimants were not doing work during the morning hour, the ET did not
treat any single factor as determinative. On the contrary, on a fair reading of the judgment, the
ET took account of all relevant factors and reached a conclusion that was open to it on the
evidence.
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