Industrial Tribunals Northern Ireland Decisions

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Cite as: [2009] NIIT 918_08IT, [2009] NIIT 918_8IT

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THE INDUSTRIAL TRIBUNAL

CASE REF: 918/08

CLAIMANT: SAMUEL BLAKLEY

RESPONDENT: SOUTH EASTERN HEALTH AND SOCIAL CARE TRUST – HUMAN RESOURCES DIRECTORATE

The decision of the tribunal is:

That the ad hoc arrangement for compensatory rest applied by the respondent did not constitute adequate compensatory rest within the meaning of Regulation 24 of the Working Time Regulations (Northern Ireland) 1998.

The time spent “on call” by the claimant constitutes “working time” within the meaning of Regulation 2 of the Working Time Regulations (Northern Ireland) 1998 and so the claimant is entitled to be paid for all of his time on call.

It follows from (2) above that the claimant has suffered unlawful deductions from wages and the hearing will be reconvened to hear submissions on remedies.

Constitution of Tribunal:

Chairman: Miss E McCaffrey

Members: Mr J McAuley

Mr R Gray

DECISION

Appearances:

The claimant appeared in person and represented himself.

The respondent was represented by Mr F O’Reilly BL instructed by Directorate of Legal Services.

The Issues

1.1 The issues for the tribunal to consider in this case are as follows:

(a) Whether, given that the claimant was engaged in the work which needed continuity of service or production within the meaning of Regulation 21 of the Working Time Regulations (Northern Ireland) 1998 as amended (“the WTR”), the ad hoc arrangement for compensatory rest applied by the respondent provided him with adequate compensatory rest within the meaning of Regulation 24 of the WTR.

(b) Whether time spent “on call” by the claimant and his fellow estate officers constituted “working time” within the meaning of Regulation 2 of the WTR and therefore whether the claimant was entitled to be paid for all of his time on call.

(c) If the claimant was so entitled, had he suffered unlawful deductions from wages contrary to Article 55 (1)(c) of the Employment Rights (Northern Ireland) Order 1996.

The Facts

2.1 We heard oral evidence in this matter from the claimant and also heard submissions from the claimant and from Mr O’Reilly on behalf of the respondent. We had various documents opened to us and heard submissions on the case law which have proved most helpful. We wish to thank both the claimant and the respondent’s representative for the amicable and constructive manner in which they presented this case. On the basis of the evidence received, we make the following findings of fact.

2.2 The claimant is one of a number of estates officers employed by the respondent and he works at their various facilities in the North Down area. The claimant started work with the respondent’s predecessors as an apprentice and has worked his way up through the system. In 2002 he was appointed as a Mechanical Engineer (Estates Officer 3) based at the Ulster Hospital, Dundonald. He was subsequently issued with a new contract in November 2004. His second contract, but not his first, made reference (in the list of duties attached to it) to the claimant participating in the provision of an out of hours emergency service if required.

2.3 In fact the claimant indicated that from the time he commenced employment as an Estates Officer, he had been expected to take part in an out of hours “on-call” service. This was operated on a rota by the estates officers, who were on call approximately one week in six. When the on-call officer finished work on a Friday afternoon at approximately 4pm, the on-call period would start and this would finish the following Friday morning at 8.54am. The week was divided into 9 periods or shifts and the on-call estates officer also worked his normal working hours. Public holidays were also treated as additional periods.

2.4 The on-call officer had responsibility for management and conduct of the out of hours service. He was given a mobile phone and an electronic pager (although it was confirmed that due to the popularity of mobile phones, a pager was in many cases redundant). He was also issued with a laptop computer which included an electronic version of the emergency manual, so he could consult the manual if need be, to decide on the appropriate response to a call. In addition he was given on-call duty sheets and blank call/event record sheets to be completed by him to provide details of the calls taken, the nature of the emergency to be dealt with, and the action taken.

2.5 The Trust facility had a management help desk which operated from 7.30am to 10pm daily and which would refer calls on to the estates officer on call when appropriate. From 10pm to 7.30am, the central telephone switchboard operated on a continuous 24 hour basis to refer calls to the on-call officer.

2.6 The claimant’s evidence was that if he received a call there were usually four possible responses. First, he could simply note the call if it was relatively minor in nature. Secondly, he could call a tradesman and ask them to go in to attend to the matter. Thirdly, if an appropriate tradesman was already on site, he would ask them to attend or fourthly, if it was an emergency, the estates officer himself would attend. The claimant conceded that visits to the site by the estates officer were rare, but he pointed out that on occasion it was necessary. If the estates officer decided to go to the site to deal with the matter, then this would attract an overtime payment.

2.7 The respondent agreed that the claimant had a contractual entitlement to be paid for overtime and there had been instances where estates officers worked overtime and were paid for the time worked. Estate officers were paid an allowance initially agreed at £375.00 for each week they were on call. This sum was superannuable and was subsequently reviewed and increased. The need for an out-of- hours service was clearly recognised by the respondent, indeed an agreement was entered into between the respondent and the Amicus Union on behalf of its estates officer members with effect from 1 April 2002 to reflect this agreement. That agreement also provides in para. 5.0 that all new appointments to the Estates Officer Grade (from February 2003) will be expected to participate in the out of hours service and at para.7.0 that either party will give three months’ notice of their intention to withdraw from the service. The agreement included a protocol for emergency calls to estates staff and set out the calls to which estates officers would respond as emergencies. It also set out a list of situations where estates officers would not respond.

2.8 Over a period of time the claimant became concerned that, when on call, he was not able to take proper rest breaks as provided for in the WTR. He agreed that he fell within the category of employees provided for in Regulation 21 of the WTR as he worked in a hospital and health service environment, where there was a need for continuity of service. He therefore agreed that when on call, he was not entitled to daily or weekly rest periods as set out in Regulations 10 and 11 of the WTR. He believed however that he should be entitled to a period of compensatory rest as set out in Regulation 24 of the WTR. There had been discussions between the Human Resources Department at the former Down and Lisburn Trust (now part of the respondent Trust) and estates officers in relation to a proposal for a compensatory rest mechanism for estates officers. Such a mechanism has not yet been put in place for estates officers, although a mechanism is in place for tradesmen such as plumbers and electricians who work for the Trust. If tradesmen are called out between midnight and 6am, they are entitled to a rest period the next day, which increases depending on the length of time for which they have been called out. Such an arrangement however does not apply to estates officers to whom an “ad hoc” arrangement applies. They were able to ask for a late start the following day or for some time off if they had been called out during the night. There is however no clear arrangement in place in relation to this. Mr O’Reilly suggested to the claimant that he had availed of this informal system and the claimant agreed that he had on a few occasions gone home early by agreement with his line manager, but his main complaint was that there was no clear policy or agreement in place which allowed him to avail of an agreed period of compensatory rest.

When the claimant was on call he was paid an allowance to take calls. He had to remain immediately and continuously available to take calls, provide technical and professional services from home and he had to make a record of all the calls taken, events and actions at the end of the week. He believed that while on-call, to use his expression, his time was not his own. While he was not obliged to be at the respondent’s premises unless there was an emergency (and he could judge for himself whether it was necessary for him to go in), he had to be available. Indeed, if he was not available for some reason, he had to arrange cover by another colleague. When Mr O’Reilly put it to the claimant that he could carry on a normal social life, go to the cinema, visit a pub with friends or go to a football match while on call, the claimant disagreed. In his view, he could not go to the cinema, because if he received a work call, he would disturb others to take the call and would then miss part of the film, so it was not feasible. He may need to consult the manual, which meant having the laptop convenient. The claimant believed that he was constrained in seeing friends and making social arrangements during on-call weeks because he had to be available to deal with calls.

2.10 The claimant agreed that there would be periods when he didn’t get many calls, but on the other hand he pointed to a table he had prepared from his out of hours work sheet from 1 April 2007 until 11 January 2008. Over this period, the average number of calls during a week on call was 44. The maximum number of calls was 69. The average number calls per “on call” period (of which there are nine during the week) was 4.9, the maximum was 7.7. The claimant did not record the time spent on each call, he simply noted when the call was received. He agreed that most of the calls were received between 5pm and 11pm and early in the morning before arriving at work. However, it is also clear from reading the time sheets which the claimant recorded, that there were occasions when he was called in the middle of the night, sometimes more than once. We therefore find as a fact that although the claimant was not bound to remain at home when on-call and could engage in other activities, he was limited in his activities by the need to be available to take calls and respond to them.

2.11 The claimant formally asked to be released from out-of-hours duties from 18 January 2008 and lodged a grievance with the respondent in respect of his entitlements under the WTR by email dated 20 March 2008. This grievance was heard on 17 June 2008 and at the hearing, the claimant argued, amongst other things, that all of his on-call time was “working time” and that he was entitled to be paid for all the hours he was available when on-call. On 26 June 2008 the respondent wrote to the claimant, advising that an urgent review of all unsocial and on-call practices across the whole Trust would be carried out as soon as possible. On completion of that review, the letter stated that if there were any sums due to the claimant or time off due, this would be paid to him and backdated. No appeal was lodged in relation to the grievance hearing, but the claimant had already lodged his claim to the Industrial Tribunal on 26 June 2008. In his claim form he alleged there were “indisputable risks“ to his personal health, family responsibilities and patient safety from the current system, but did not provide any evidence of this.

The Law

The “Working Time” Issues

As far as the Working Time Regulations issues are concerned, the law is to be found in the Working Time (Northern Ireland) Regulations 1998 (“the WTR”). The relevant parts of those regulations for the purposes of this case are as follows.

3.2 Regulation 2 provides definitions as follows:-

“working time”, in relation to a worker means –

a) Any period during which he is working, at his employer’s disposal and carrying out his duties or activities;

b) Any period during which he is receiving the relevant training; and

any additional period which is to be treated as working time for the purposes of these regulations under a relevant agreement;

and “work” shall be construed accordingly;

“Relevant Agreement” in relation to a worker, means a work force agreement which applies to him, any provision of a collective agreement which forms part of a contract between him and his employer, or any other agreement in writing which is legally enforceable as between the worker and his employer;

3.3 Other relevant regulations provide as follows:-

“21.Subject to Regulation 24, Regulation 6 (1) (2) and (7) [length of night work], 10 (1) [daily rest period], 11 (1) and (2) [weekly rest period] and 12 [rest breaks] do not apply in relation to a worker - ……. (c) where the worker’s activities involve the need for continuity of service or production as the case may be in relation to –

(i) services relating to the reception, treatment and care provided by hospitals or similar establishments, residential institutes;” …..

“24.Where the application of any provision of these Regulations is excluded by Regulation 21 or 22, or as modified or excluded by means of a collective agreement or a workforce agreement under Regulation 23 (a) and a worker is accordingly required to work during a period which would otherwise be a rest period or rest break –

(a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest and

(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker’s health and safety.”

“ 30(2) An industrial tribunal shall not consider a complaint under this regulation unless it is presented

(a) Before the end of the period of three months (or, in a case to which Regulation 37(2) applies six months) beginning with the date that it is alleged that the exercise of the right should have been permitted (or in the case of rest period or leave extending over more than one day the date on which it should have been permitted to begin) or as the case may be, the payment should have been made; or

(b) within such period as the tribunal considers reasonable in the case where it is satisfied that it was not reasonably practicable for the complaint to be presented before that period of three or, as the case may be, six months.”

3.4 In this case the claimant had brought a grievance in relation to the matters complained of to his employers and the respondent therefore conceded that the period of lodging his claim had been extended to 6 months by the operation of the statutory grievance procedures. The claimant’s claim to the Industrial Tribunal was lodged on 26 June 2008 and the respondent therefore argued that the claimant’s claim for compensatory rest was limited to the period of 6 months prior to the presentation of his claim i.e. from 27 December 2007 onwards. The claimant pointed out that payment for on-call periods was made a month after the on-call period i.e. the payment for on-call periods in November was paid in December’s pay. The Tribunal was satisfied that we should consider only claims for compensatory rest from within the six month period prior to the presentation of the claim.

3.5 The case law in relation to the issue of “on call” periods and the operation of the WTR is detailed and was presented to us by both the claimant and by the respondent’s representative. We have focused on the caselaw which is most relevant to the particular situation of the claimant, and refer only to those cases we consider most relevant to the determination of the issues in this cases. Both the WTR and the Working Time directive (directive 93/104/EC) define ”working time” as any period when the worker is working at his employer’s disposal and carrying out his activities or duties.

3.6 There are two leading decisions of the European Court of Justice on the “on call” issue. The first is the case of SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana (caseC303/98) [2000] IRLR 845. In that case, doctors who worked in primary healthcare teams provided an out of hours service. When on call, they were expected to be contactable at all times, but it was not essential for them to be at the health centre, unless they were called in to see patients. In that case it was noted that they were at the disposal of their employer in that it must be possible to contact them, but the European Court of Justice (“the ECJ”) held that only the time when they were actually called into the health centre to see patients was to be regarded as “working time” within the meaning of the directive. The rest of the time they were entitled to manage their time with fewer constraints and pursue their own interests.

3.7 In the second case, which is known as Jaeger [2003] IRLR 804, doctors who were on call were expected to sleep at the employer’s premises even though they may not be called out on duty during the night. Here, the ECJ found that the entirety of their on call period, including sleeping time, was “working time” because they must be available to stay at the clinic. The court summed up their reasoning as follows:

“63.According to the Court, the decisive factor in considering that the characteristic features of the concept of working time within the meaning of directive 93/104 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need. In fact, as may be inferred from paragraph 48 of the judgment in SIMAP, those obligations, which make it impossible for the doctors concerned to choose the place where they may stay during the waiting period, must be regarded as coming within the ambit of the performance of their duties.

64. That conclusion is not altered by the mere fact that the employer makes available to the doctor a rest room in which he can stay for as long as his professional services are not required.

65. It should be added that, as the Court has already held at paragraph 50 of the judgment in SIMAP, in contrast to a doctor on standby, where the doctor is required to be permanently accessible but not present in the health centre, a doctor who is required to keep himself available to his employer at a place determined by him for the whole duration of period of on-call duty is subject to appreciably greater constraints since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required. Under those conditions, an employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity.” (Judgment, paras 63-65)

3.8 We are of course bound by the provisions of the European Communities Act 1972 to take judicial notice of decisions of the ECJ where relevant, as they are here. We were not referred to any Northern Ireland caselaw on this point, but there are decisions of the Employment Appeal Tribunal and the Court of Appeal of England and Wales which are relevant and highly persuasive. In McCartney v Oversley House Management [2006] UKEAT IRLR 514, the Employment Appeal Tribunal (the “EAT”) had to consider the situation of Mrs McCartney, who was a resident manager at a facility known as Oversley House and had “tied” accommodation related to her job. Her hours, as set out in her contract of employment, were for four days per week of 24 hours on site cover. She visited residents on a rota basis, liaised with their carers and doctors as necessary, she would let contractors in and out and organised social activities. She worked on a duty roster with another manager who was on duty for the other three days per week and they agreed the roster so that they had alternate weekends off. She was able to do most of her duties between 8am and 6pm and arranged them to suit her own convenience. However, Mrs McCartney was on call for the whole 24 hours, she was required to be on site or within a 3 minute radius of it, just enough to take her dog for a walk. She could not socialise in the town or visit her daughter and family. She could however receive visitors, listen to music, eat, undertake other activities at home and of course, sleep in her own bed. She would deal with emergency calls which ranged from the trivial to genuine emergencies. The Employment Tribunal which heard Mrs McCartney’s case initially found that she was not working through-out the period when she was on call. The Employment Appeal Tribunal however came to a different conclusion. Applying the principles laid down in SIMAP and Jaeger, they came to the conclusion that the whole period when Mrs McCartney was on calls constituted “working time”. The likelihood of her being telephoned or called out was very substantially less than the likelihood of a doctor being called out while at rest in a hospital, but the EAT stated,

“para.48……. (unless the likelihood of call out is so insignificant as to be trifling) we do not think the extent to which the worker is likely be called out (which might fluctuate from time to time) can be decisive of the question of whether he or she is working.”

3.9 The EAT went on to quote from para. 69 of the Jaeger judgment, where the ECJ pointed out that to be able to rest effectively, a worker must be able to remove himself from his working environment for a specific number of hours, “to enable him to relax and dispel the fatigue caused by the performance of his duties.”

3.10 The EAT also referred to the case of British Nursing Association v Inland Revenue [2002] IRLR480 (Court of Appeal). In that case the employees provided a telephone booking service whereby nursing homes and other institutions could obtain “bank nurses” on an emergency basis. During the day, employees working at the employer’s premises provided this service. However, outside of office hours, the work was transferred to employees working from home. Although the employees had to be available to deal with telephone calls, they could spend at least part of their time doing other activities such as reading or watching television. Ultimately the Court of Appeal upheld the view that the employees operating the telephone booking service from home during night time hours were “working” throughout their shifts for the purposes of the National Minimum Wage Regulations. Lord Justice Buxton stated as follows:-

“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 set out in 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 period 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 a substantial overhead cost on the employer and lead to significant difficulties in recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home…….”

Later in his judgment he stated,

“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.”

3.11 The EAT in the McCartney case considered the fact that the British Nursing Association case was decided under the National Minimum Wage Regulations, rather than the Working Time Regulations. However, they noted that Lord Justice Buxton reached his conclusion as a matter of the ordinary use of language and secondly, that he referred to SIMAP, which he distinguished on the basis that the doctors who were on call at home, did no work at home merely by being on call. In McCartney, the EAT noted that Mrs McCartney’s home was a place of work for her, she was not merely liable to be called out by some independent service but was liable herself to take telephone calls from residents and deal with them.

3.12 We have also had the opportunity to consider a very recent decision of the EAT in England in the case of Hughes v Graham and Lynn Jones t/a Graylyns Residential Home [2008] UK EAT 0159 08 0310. This case also concerned a lady who worked at a residential home, where she was provided with a subsidised flat as part of her accommodation on the condition that she provided the “on call” emergency service. As a matter of fact, the claimant was called out about twice a month. When she raised a grievance about this she was paid a half an hour’s pay for each call out. Ms Hughes’ claim was that she was not given proper rest periods or weekly rest periods. The respondent’s case was that the claimant worked only when she was on call and was actually called out for which she was ultimately paid. As the number of call outs is minimal, they believed she should be paid a small amount, but not the full hourly rate payable under the National Minimum Wage legislation. The EAT, chaired by Judge McMullen QC, found in favour of the claimant. They believed that the claimant was entitled to the benefit of the WTR which had been breached both in respect of the number of hours required to be worked including those on call and by the failure to provide rest periods and rest breaks. Given that Ms Hughes’ claim included a claim to be paid the minimum wage for all of the hours when she was on call, the EAT found that it followed that the minimum wage became payable for all of those hours save those under Regulation 16 (1A) of the Minimum Wage Regulations when the claimant was sleeping and so not entitled to be paid for those hours.

2. The “Unlawful Deductions” Issue

3.13 In relation to the question of unlawful deductions from wages, the relevant legislation is to be found in the Employment Rights (Northern Ireland) Order 1996 which protects employees against unauthorised deduction of wages. The relevant provisions provide as follows:-

“Art.45 (1) An employer shall not make a deduction from wages of a worker employed by him unless –

a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker’s contract, or

b) the worker has previously signified in writing his agreement or consent to the making of the deduction…..

c) where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions) the amount of the deficiency shall be treated for the purposes of this part as the deduction made by the employer from the worker’s wages of that occasion…….”

“Art.55 (1) A worker may present a complaint to an Industrial Tribunal

a) that his employer has made a deduction from his wages in contravention of Article 45……..

(2) Subject to paragraph (4) an Industrial Tribunal shall not consider a complaint under this Article unless it is presented before the end of the period of 3 months beginning with

a) in the case of a complaint relating to a deduction by the employer, the date of payment of the wages from which the deduction is made or

b) in the case of a complaint relating to a payment received by the employer, the date when the payment was received.

c) where a complaint is brought on to this Article in respect of (a) a series of deductions or payment or (b) a number of payments falling within paragraph (1)(d) and made in pursuance of demands for payment subject to the same limit under Article 53 (1) but received by the employer on different dates, the references in paragraph (2) to the deduction or payment or to the last deduction or payment in the series or to the last of the payments so received.”

3.14 The time for presentation of the claim may be extended by up to 6 months by operation of the Statutory Grievance Procedures and in this case the claimant had availed of the grievance procedure as it applies to unlawful deductions from wages. The claimant argued that if indeed the hours when he was on call were “working time”, he was entitled to be paid for those hours at the full overtime rate and not simply to be paid a supplementary allowance for those hours. He believed therefore that as he had a contractual entitlement to overtime (and this was conceded by the respondent), that the respondent was liable to pay to the claimant for overtime worked while on-call, going back to 2002 when the claimant first took up his post.

3.15 The claimant was entitled to be paid for an on-call period worked in November 2007 at the end of December 2007 and to be paid for on-call work in January 2008 in February 2008 and had received the usual allowances. At that stage he had asked to be taken off the on-call rota and had not worked on-call since that date.

3.16 In relation to unlawful deductions of wages for overtime, it was our view that as the claim in relation to this matter was for a series of alleged deductions of pay, if the claimant successfully established his entitlement to be paid for all his on-call hours, we could consider all deductions going back from the date of the claim which was lodged in time right back to the date of the claimant’s commencement of employment as an estates officer.

4.Decision

4.1. Does an ad hoc arrangement for compensatory rest fulfil the employer’s obligation to provide “adequate compensatory rest” within the meaning of regulation 24 of the WTR?

4.2 In relation to this matter, the tribunal notes that the WTR make specific allowance for the situation where a worker is required to work extra hours to provide a continuity of service, for example, within a hospital or similar establishments, residential institutions or prisons. The claimant was quite clear that he fell within that category of worker and he did not therefore press his entitlement to rest breaks, a daily rest period or a weekly rest period. He argued instead that his situation was covered by Regulation 24 of the WTR which specifically provides that his employer should “wherever possible” allow him to take an “equivalent period of compensatory rest.” The claimant argued that the failure of the employer to set in place formal arrangements to allow for compensatory rest for on-call estates officers was contrary to the Regulations.

4.3 The respondent’s case was that the “ad hoc” system which applied, whereby the claimant could ask for a late start or for time off if he had had a disturbed night’s sleep while on-call, was perfectly sufficient: all he had to do was ask. We do not agree with this reasoning. In the working culture which is prevalent today, it may be perceived as weakness or a lack of commitment if an employee asks for a period of compensatory rest. If there is a clear policy in place providing for compensatory rest to be made available in certain circumstances, and setting out how this compensatory rest is to be calculated and accessed, this gives clarity for both employer and employee. It allows an employee to avail of their entitlement to compensatory rest without feeling that they are asking for a “favour” rather than an entitlement. Given that the respondent was able to put in place a clear system of compensatory rest for the tradesmen working for the Trust, we really cannot see why a similar procedure was not put in place for estates officers. It would be simple and straightforward to do so and would be to the benefit of both staff and management.

4.4 We therefore find that the respondent is currently in beach of its obligations under Article 24 of the Working Time Regulations (Northern Ireland) 1998 in failing to provide for the equivalent period of compensatory rest as required in order to safeguard the worker’s health and safety. No evidence was provided by the respondent to show that it was not possible to grant such a period of rest, and while the claimant did not produce any medical evidence that the on-call system was proving injurious to his health, we can entirely appreciate that if an estates officer is called out or telephoned though the night because of an emergency at his place of work, it is necessary for him to have an appropriate period of compensatory rest.

4.5. Whether time on-call was “Working Time”?

In this case, the claimant worked on-call about one week in six, providing an out of hour’s service to deal with problems regarding estates issues. This could be anything from a water leak to a power failure to an operating theatre being unavailable due to technical reasons. It is self-evident that the work done by estates officers on the out-of-hours service is essential to the efficient running of the respondent’s facilities and that it is a task which the respondent needed to have done. Understandably, this service is considered essential to the proper running of the Trust’s services by the respondent and that would be so whether the number of calls was large or small.

4.6 The claimant was not required to be on the respondent’s premises during his on-call periods; he could be at home and indeed was not required to be there continuously, as he could engage in his own activities within limits, as set out in paras. 2.9 and 2.10 above. However, he was obliged to be available to answer calls, give advice and direction to tradesmen sent to deal with problems as they arose and, depending on the nature and seriousness of the problem, he would have to go to the hospital or other Trust premises to deal with it. It was not disputed that, while dealing with calls, the claimant was working and this was acknowledged, we believe, by the fact that the claimant and his colleagues received an allowance for each week they worked on call. They also received an overtime payment for the occasions when they did have to go to the hospital or any other premises, and so the issue is really this: was the claimant working throughout his on-call periods, and is he therefore entitled to be paid for all his hours on-call, not just the time he actually spent at the Trust’s premises?

4.7 The SIMAP and Jaeger decisions read together indicate that a person who is on-call and expected to be available to come to work if required will not be treated as “working” during the time they are on-call but not actually carrying out work, if they are not required to be at the employer’s premises. However this is not the claimant’s position. He is available for work and carries out work while on call, some of it at the employer’s premises, but mostly not. He may carry out work from his home or another location, but he must be available to take calls and then take the necessary action to deal with them, including being available to go to the employer’s premises if need be. This in our view means that he must be able to reach the premises within a reasonable period of time, which may restrict the activities the claimant can pursue while on call and how far away he can be, either from home or the hospital. He must also be able to access his laptop computer to consult the electronic manual, which again may limit what other activities the claimant can do during on-call periods.

4.8 Our view is that the claimant’s situation is more akin to that of the claimants in the McCartney and the British Nursing Association cases referred to above. The claimant is required by his employer to be available to do work out of hours and that contractual requirement is reflected by the Joint Agreement entered into by the respondent’s predecessor with the Amicus Union in February 2003, but effective from 1 April 2002.That agreement we believe is a “relevant agreement” under the definition set out in Regulation 2 of the WTR, in that it is a workforce agreement which applies to him or a collective agreement which forms part of a contract between him and his employer. The definition of “working time” in Regulation 2 includes:

“(a) any period during which he is working, at his employer’s disposal and carrying out his activities or duties, (emphasis added)…………and

(c) any additional period which is to be treated as working time for the purposes of these Regulations under a relevant agreement;”

4.9 We believe that as Lord Justice Buxton pointed out in the British Nursing Association case, the employee can still be working when waiting at home to take calls:

“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 periods when he or she was on the phone.”

4.10 We take the view that an employee who is on-call, but not on the employer’s premises, is still working by being available and able to carry out duties. The fact that the number of calls may be substantial adds to the argument that the claimant is working while on call, but the lack of them does not change that finding: see the comments of Buxton LJ in the British Nursing Association case. It is the availability of the service which is important to the employer: the fact that the claimant may be able to do other things while on-call and not actually engaged in work continuously is not the issue.

4.11 It follows from all of the above that the claimant has worked throughout his on-call periods and is entitled to be paid overtime as appropriate. Accordingly, it is our finding that he has suffered unlawful deductions of wages and is entitled to be compensated accordingly. We have not heard argument or submissions from the parties on the appropriate level of payment to be made to the claimant in the event that we found in his favour. We will therefore reconvene the hearing to hear submissions on the question of remedies. In the course of those submissions we invite the parties to address us on these issues:

1. The appropriate rate of pay to be made to the claimant for his on-call hours; and

2. Whether the claimant is entitled to be paid for all the hours he is on call, including the hours when he is sleeping.

Chairman:

Date and place of hearing: 11 & 12 November 2008, Belfast

Date decision recorded in register and issued to parties: