Mr A Gold Mr S Lancaster Mr D Lythgoe v Secure Empty Property — 2026

Employment Judge Eeley made preliminary findings in the claims brought by Mr A Gold, Mr S Lancaster and Mr D Lythgoe against Secure Empty Property Limited concerning First Man on-call duties. The tribunal examined six sample weeks for each claimant, all before changes to the system on 30 September 2024. The First Man took out-of-hours calls, assessed whether action was needed, arranged assistance or attended sites with the Second Man, and passed information to the office. Although the written employment contracts did not mention on-call work, participation in the rota formed part of the contractual arrangements through custom and practice. The tribunal rejected the claimants' contention that they performed the full office role out of hours.

The claimants had to keep the work phone accessible, abstain from alcohol and have access to the company van. They could leave home, use the van for personal purposes and pursue leisure activities. Calls could go to voicemail and be returned within a reasonable time. The usual guideline was to reach a site within three hours, with attendance generally limited to sites within a two-hour drive. A 30-minute response provision in the Bolton at Home contract had not operated in practice. The tribunal found no requirement to answer every call immediately or stop personal activities as soon as a call arrived.

The tribunal generally preferred the respondent's evidence on the amount and pattern of work. The sample data showed an average of 31.5 batches of calls per on-call week, with recorded calls totalling about 49 minutes. Administrative duties, including calls, emails and messages, averaged no more than three hours per week; recorded callouts averaged four hours and 52 minutes. Calls varied in frequency and duration, and gaps between messages did not establish continuous work. Some direct mobile-call records were unavailable because of the provider's retention policy. The tribunal found no failure to disclose available information and accepted estimates allowing for work absent from the records.

Under regulation 2(1) of the Working Time Regulations 1998, the entire on-call period was not working time. The claimants were not continuously working, were not confined to a place chosen by the employer, and faced no constraints that objectively and very significantly affected their ability to pursue personal and social interests. Only actual work counted. This included answering calls, listening to voicemail, reading and sending messages and emails, arranging and collecting the Second Man, travel to and from sites, work at sites and follow-up coordination. Given these conclusions, the tribunal did not determine whether the regulation 21 exemptions applied.

For minimum-wage purposes, each claimant's day work and on-call duties had to be assessed together under one employment contract. From 19 September 2022, the First Man received a fixed weekly allowance of £135 plus payments for callouts. Total monthly pay varied with the time worked, so the arrangement was time work under regulation 30 of the National Minimum Wage Regulations 2015, not unmeasured work under regulation 44. Actual administrative duties and callouts counted as work. Applying regulation 32 and Royal Mencap Society v Tomlinson-Blake, inactive availability did not count: the claimants were not required to remain at or near a workplace, and periods at home awaiting work or spent asleep did not qualify.