England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Altman)

		Royal Courts of Justice Strand London WC2
		Tuesday, 26th March 2002

Tuesday, 26th March 2002

1. LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment.
2. LORD JUSTICE BUXTON: This appeal from the Employment Appeal Tribunal in proceedings where it upheld the decision of an Employment Tribunal, concerns what is in truth a very short point on the construction of the National Minimum Wage Regulations 1999.
3. The British Nursing Association ("BNA"), who are the appellants both here and in the Tribunal below, is an organisation which provides what are described colloquially as "bank nurses" on an emergency basis. It provides and advertises a 24-hour booking service, which during the day is operated from its own premises, but during the night time services are provided by employees who work from home. During that period the members of the staff who are concerned answer calls that are diverted to their home number and take action on the request by identifying and contacting the person who is actually to do the work. Further detailed information about the terms and conditions of the members of staff involved is to be found in a statement of agreed facts that was helpfully appended to its judgment by the Employment Appeal Tribunal, and which I equally append to this judgment.
4. The members of staff are paid an amount per shift. Whether they are paid an amount that satisfies the requirements of the national minimum wage therefore depends on the amount of time during the shift for which they are to be considered as actually working in the terms relevant to the Regulations.
5. The appeal involves the construction of Regulations 3(a) and 15(1). 3(a) reads:

"In these Regulations `time work' means-

(a) work that is paid for under a worker's contract by reference to the time for which a worker works and is not salaried hours work".

6. Regulation 15(1) is of importance in this appeal and reads as follows:

"Provisions in relation to time work

15.-(1) In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working."

7. The parties asked the Employment Tribunal to determine certain specific issues, and its determination on those points is set out in preliminary paragraph 1 of its decision and, for the purposes relevant to this appeal, reads as follows:

"On the matters of principle which the parties asked the Tribunal to determine, the Tribunal determines as follows:

(i)In accordance with Regulation 15(1) of the National Minimum Wage Regulations 1999, the workers are engaged in time work at times when they are awake and awaiting calls at home.

(ii)Time work does not include time when they are asleep in accordance with Regulation 15(1)."

8. However, that Tribunal made a specific finding in paragraph 37 of its determination:

"... in this case we find that the workers are working for the whole of their shift."

9. Its reasoning to that effect is to be found in paragraphs 26 and 27 of its determination:

"26.In this case the workers are employed to answer the telephone, to assign bank nurses and, to a limited extent, to give advice. It is a 24 hour service. During the extended day, this service is provided from offices around the country. During the night, broadly from 8.00 pm to 9.00 am, it is from the homes of the workers who are the subject of this notice. It is a seamless service. In other words, the client does not know the location of the person who is answering the telephone.

27.We therefore find that these workers are `working' through the nightshift answering the clients' telephone calls and there is, therefore, no difference between the day workers and the night workers, except that the night workers work from home."

10. That reasoning was criticised as suggesting that the workers spend the whole night actually on the telephone. I would, however, respectfully agree with the Employment Appeal Tribunal at paragraph 14 of its judgment that, whilst the Employment Tribunal expressed itself somewhat loosely in these particular paragraphs, it was in fact basing itself on the whole of the evidence as to the nature of the duties of the workers already set out or referred to.
11. On the facts as set out, I would respectfully agree with the Employment Appeal Tribunal in paragraphs 23 to 26 of its judgment that the Employment Tribunal were entitled to find that the workers were working throughout their shift. That conclusion is criticised in paragraphs 2(1)(a) of the grounds of appeal, a criticism renewed before us by Mr Epstein, as being inconsistent with the statement of agreed issues that was put before the Employment Tribunal to the effect that the staff "spend a proportion of their shifts not actively engaged in work but awake and required to answer telephone calls". That complaint is, however, unduly pedantic. It is plain that by their formulation of the factual position, the parties intended to use the concept of being "actively" engaged in work to refer to the actual answering of the telephone. The question is, however, whether they were nonetheless working when waiting to answer the telephone.
12. I have to say that not only was it open to the Employment Tribunal and to the Employment Appeal Tribunal to find that the workers were working throughout their shift, but also, as an issue of the ordinary use of the English language, it seems to me self-evident on these facts that they were indeed so working. No one would say that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night-time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home. It was indeed as a continuation of the day-time service that the employer presented the night-time service to his employees and recruited them for that purpose. That is illustrated by the job description document that was shown to us, which starts by saying:

"JOB PURPOSE

To work as part of the part of BNA team, providing a continuing service to BNA clients and members after the branch offices have closed and over the weekend. to enhance BNA's reputation and maximise the business in a flexible caring manner."

13. That in the event there may during the middle period of the night be few calls to field is nothing to the point. It is for the employer to decide whether it is economic and necessary to his business to make the facility available on a 24-hour basis. If he does so decide, it is the availability of the facility, not its actual use, that is important to him; and that is what he achieves by the working arrangements described in this case.
14. However, the main argument, raised against those findings, which seem to me at the very lowest entirely open to the Employment Tribunal applying to the facts its understanding and experience of industrial relations, was the argument developed before us by Mr Epstein that, as a matter of law, the Regulations made a distinction between work at the employer's work place and activities carried on - and I will use that expression neutrally for the moment - at the worker's own home. Therefore, the Employment Tribunal had erred in seeing a necessary continuation between the activities at the work place and the activities at the worker's home, and should not have found that the workers were working throughout the period when they were at home in the same way as they would be working throughout the period when they were at the employer's premises. As I have said, that objection could, in my judgement, only be based upon an objection of law in the face of the very strong implications of the facts that I have already endeavoured to set out; and the argument is, I fear, misconceived. It was based entirely on the construction of Regulation 15, which indeed draws a distinction between a worker being available at or near a place of work for the purpose of work, and that same situation when he is at his home, as the wording sets it out. But Regulation 15 only arises in a case where a worker is not in fact working, but is on call waiting to work. In this case, as we have seen, the Tribunal found as a fact that the workers were working throughout the period of their shift. Regulation 15 is therefore irrelevant to these facts; and, moreover, even if that were not the case, it is in my judgement impossible to construe out of Regulation 15 a rule that applies to the whole of these Regulations, that obliged a tribunal to make a different finding in respect of the nature of a person's activities with regard to work just because they were being carried on at the employee's place of residence. I therefore would reject the argument advanced to criticise the Tribunal's principal finding.
15. So far so good. Further difficulties, however, arise in this case from Regulation 15 itself, and the roles it played in the argument and in the statement of issues. As I have already indicated, I find it extremely difficult to say that this Regulation is relevant to this case at all. Once the Tribunal had found that the employees were in fact working throughout their shift, Regulation 15 only applied thereafter to situations of a particular sort in addition to what can be properly characterised as work; and on the Tribunal's findings the situation that they were addressing was not a deemed piece of time work but an actual piece of time work. That indeed was the view of the Tribunal itself, because having been invited to look at certain aspects of Regulation 15, it said this at paragraphs 33 and 34 of its determination:

"33. In the present case, the workers are paid to work at home and their place of work is at home.

34. We therefore conclude that the words in Regulation 15(1) of `available at or near a place of work other than his home' are not relevant to the present situation."

16. But both Tribunals were faced with the difficulty that the parties had agreed at all stages that Regulation 15(1) was indeed the governing provision in this case, and there is, and probably could not be, any cross-appeal as to the limitations on the extent of the employees' "work" that the Employment Appeal Tribunal drew, in the light of those submissions, from the terms of Regulation 15(1). It is however necessary to enter two caveats. First, I do not in this judgment decide anything as to the proper application of Regulation 15(1) in a case such as the present. Second, the difficulty that has been experienced in this case in interpreting Regulation 15(1) springs from what I would see as the artificiality of its applying to the present facts at all.
17. Regulation 15(1) relates to workers who are, in colloquial terms, "on call". When a worker falls into that category, he has to be paid the minimum wage for his waiting hours, unless he is on call at home. I respectfully agree with the very clear analysis of the Employment Appeal Tribunal to that effect in paragraphs 28 to 30 of its judgment. However, if the worker is permitted to sleep when on call, the hours during which he is permitted to sleep and when he is not actually working do not count as the equivalent of time work. The Employment Tribunal held that these provisions apply in the present case, a holding that as we have seen has not been challenged. I cannot conceal my profound doubt as to that conclusion. Regulation 15(1) is arranged as a single provision. The exception that it contains, introduced by the words "except that", is indeed an exception: that is, it presupposes that the case is otherwise covered by the principal rule of the regulation. That principal rule, as we have seen, is confined to cases where the worker is on call other than at his home. So where, as in our case, the workers are asleep at home, they are not covered by the exclusion because they are not in any event covered by the rule from which they appear to be excluded.
18. None of this should have affected the workers in our case, because they do not need the assistance of the Regulation to establish that they are working or deemed to be working. However, as I have said, the structure and history of the proceedings makes it in my view impossible to escape from the limitation imposed by the Employment Tribunal that the workers should not be paid for the hours they are permitted to sleep. On the facts of this case, that presents considerable difficulties of assessment, as set out by the Employment Tribunal in paragraphs 44 to 45 of its determination, which I think I need not take time in citing. Bearing in mind that it is for the employer to establish that the employee was remunerated at the proper rate, I have doubts as to whether the employer in this case will in fact succeed in excluding any period of sleep from the period deemed to work. That is inevitably a question for another day, in respect of which observations made in this court are not in any way conclusive.
19. Having said all that, the alternative that is apparently contended for by the appellant, that the employees are only working when they are actually dealing with phone calls with all the periods spent waiting for calls excluded, would, in my view effectively make a mockery of the whole system of the minimum wage.
20. The Employment Appeal Tribunal was asked to look at the Parliamentary debates in order to establish some sort of congruence between the present provisions and the Working Time Directive and Regulations. Mr Epstein showed good judgement in not pursuing that particular thread of his argument in this court. He did, however, say that the European Court of Justice decision on the Working Time Directive in SIMAP provided some guidance as to the proper approach to the concept of working hours in our present legislation. Quite apart from the different objectives of the different pieces of legislation, I do not agree with that submission. In SIMAP the doctors were on call but at home, a place where, on any view, they did no work at all.
21. For those reasons, therefore, I would dismiss this appeal.
22. MR JUSTICE NEUBERGER: For the reasons given by my Lord, Buxton LJ, I too would dismiss this appeal.
23. LORD JUSTICE PETER GIBSON: I also agree.
Order: Appeal dismissed with costs subject to detailed assessment unless otherwise agreed.