Industrial Tribunals Northern Ireland Decisions

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Cite as: [2013] NIIT 2242_12IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 2242/12

CLAIMANT: Yvette Rice

RESPONDENT: Praxis Care Group

DECISION

The unanimous decision of the tribunal is that the claimant’s complaints of unauthorised deductions under Article 45 of the Employment Rights (Northern Ireland) Order 1996 and any associated claims, whether made under contract or any statutory provision, are not made out and the claims are dismissed by the tribunal, without further order.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Ms M Galloway

Mrs S Doran

Appearances:

The claimant was represented Mr P Boomer of Northern Ireland Public Service Alliance.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

REASONS

THE ISSUES FOR DETERMINATION AND THE EVIDENCE

1. By claim dated 7 November 2012 the claimant made complaints against the respondent. These complaints were clarified by the claimant’s representative, Mr Boomer, at the commencement of the hearing. The representative confirmed to the tribunal that the claimant was not pursuing any claim for unpaid holiday pay. Mr Boomer confirmed that the claimant’s complaints were made as a claim under contract on foot of the provisions of the Employment Rights (Northern Ireland) Order 1996 and not under the National Minimum Wage Act 1998 and regulations made thereunder.

2. By response dated 12 December 2012 the respondent denied that there was any substance in the claim or claims made by the claimant and it was asserted in particular that the claimant had been paid all money legally due and owing to her; it was contended that there had been no unlawful deductions from the wages properly due to the claimant. At the outset of the hearing, counsel for the respondent, Mr Hamill, contended that the National Minimum Wage Act 1998 and regulations made thereunder did certainly have a material bearing upon the case. Accordingly, in the light of the evidence to be adduced and the submissions made by the respective parties, the tribunal had to define the legal remit and jurisdiction of the claim or claims made by the claimant to the tribunal and had to determine any such claim or claims in the light of the evidence and consequent findings of fact and in the light of any submissions by the proper application of the law to any material facts.

3. The tribunal heard oral evidence from the claimant. No witnesses were called apart from the claimant to give evidence, including witnesses on behalf of the respondent. The tribunal received into evidence an agreed hearing bundle consisting of some 160 pages, together with an additional bundle of documents. The respective representatives made clear to the tribunal that a substantial body of the evidence in the matter was not broadly in dispute between the parties and there were relatively few matters of evidence and fact in major contention.

4. In consequence of the oral and documentary evidence adduced, the tribunal made the following material findings of fact, upon the balance of probabilities:-

4.1 The respondent, Praxis Care Group, is an organisation which provides residential care facilities at a number of locations throughout Northern Ireland. One such facility is the Lisburn based, Respond Parklands Scheme (“Parklands”). It was there that the claimant was employed by the respondent. Parklands is a relatively small residential care facility with a maximum of eight residents in the facility at any time. This employment commenced on 2 October 2006. The job title was a “sleep over worker”. The contractual terms applicable to this post were embodied in a written statement of main terms and conditions of employment. The material terms were that the claimant was to be remunerated at a figure of £28.44 per working night. Inserted in manuscript on the copy of these contractual terms inspected by the tribunal was an indication that the working hours were from 9.00 pm to 8.30 am. The tribunal was provided with no other evidence to suggest that the foregoing were not the initially agreed working hours applicable to this post. The claimant was required to work 23 hours per week, normally over a two-night working week. The contract terms provided that there was to be no “disturbance rate” of pay for any member of staff doing sleep-in duties. However, if staff were disturbed for more than 30 minutes during a sleep-in, they might claim time in lieu for the remainder of the disturbed period. The claimant was provided with a room and a bed. There was a facility for an alarm or a “buzzer” whereby the claimant could be contacted or aroused from sleep if required and she could thereby identify the resident who might have been seeking attention. Although the copy of these written contractual terms seen by the tribunal had not been dated and signed by the claimant, these terms appear to have been agreed between the respondent and the claimant for the employment that followed from the commencement date of 2 October 2006.

4.2 The claimant gave some evidence regarding what she described as being an error in remuneration rates which she stated had been discussed with management in October 2008. However, the tribunal noted that this was not expressly mentioned in paragraph 7.4 (the details of claim) as provided in the claimant’s claim form. The tribunal understands that any discussions in 2008 centred around aligning, as necessary, the claimant’s remuneration with the proper rate for the National Minimum wage relevant at the time under the contractual provisions then in force and meeting any arrears of remuneration as appropriate, which the tribunal understands was properly addressed at the time.

4.3 In 2010 the respondent wished to amend the foregoing contract of terms. The claimant was informed of a revised written statement of main terms and conditions of employment. However the claimant did not sign and date a copy. She seems to have taken issue with some of the revised terms at the time. It seems that the claimant attended initially a meeting with her manager at some time in 2010 when the new terms were verbally put to her. The claimant maintained to the tribunal that she regularly requested a copy of the new contractual terms but for some reason (unexplained to the tribunal if that was indeed the case) a copy of the new terms was not afforded to her until June 2011. However, she did not sign acceptance of these terms. In these new terms the job title, which had been “sleep over worker” in the original contract terms, was amended to that of “support worker”. It was stated that the job as support worker commenced with effect from 1 July 2010. The place of employment remained the same, Lisburn Parklands Scheme. In paragraph 5, entitled “Hours of Work”, in place of the earlier stated requirement to work 23 hours per week normally over a two night week, it was provided as follows:-

“You will be required to work 5 hours per week, normally over two-nights per week on a split shift basis of 10.00 pm to 11.00 pm and then 7.30 am to 8.00 am. The organisation will provide sleep in facilities on site, which you are free to use between 11.00 pm and 7.30 am. Time spent sleeping will be classified as unmeasured time.”

4.4 In the remuneration section (paragraph 6) in place of the original contractual provision specifying that the salary was £24.44 per night, the revised provision reads as follows:-

“For hours worked between 9.00 pm and 11.00 pm and 7.30 am to 8.00 am you will be paid £6.66 per hour. While you are using on site sleeping facilities you will receive remuneration of £32.85 per sleeping period. If you are disturbed for more than 30 minutes while using the sleeping facilities you will be paid £6.66 for every full hour you are disturbed and not using the facilities.”

It is these changes to the contractual provisions which were the subject of much of the focus of the hearing in the matter.

4.5 When the tribunal explored with the representatives and with the claimant whether she was properly to be seen as working under these new terms, as it where, “under protest” or whether, in the alternative, the claimant had in effect acquiesced in acceptance of these new terms, the best interpretation arrived at by the tribunal in regard to the claimant’s attitude to things is that the claimant, as it were, “went along” with these new terms. However the claimant nonetheless appears to have adopted the stance that she had reserved her position in regard to the pursuit of the type of claim which is now pursued by her in these proceedings. When questioned in cross-examination as to why the claimant did not resign and endeavour to argue fundamental breach of contract on the employer’s part in forcing these amended terms of contract upon her, the claimant explained that her job was too important to her and therefore she “went along”, so to speak, with the revised terms.

4.6 In addition to performing the specified duties under this contract, the claimant also volunteered to do eight hours per week of cooking duties. However, that additional work does not directly concern the subject matter of this case. The claimant stated that she continued to work precisely the same working hours as she had done under the earlier contract terms, commencing at 9.00 pm and working until 8.00 am. The one anomaly that the tribunal did observe in all of this is that, in the manuscript addition referred to above, the initial contractual hours of work appear to have been specified as 9.00 pm to 8.30 am. However, the revised contractual hours of work are specified (it would appear from clause 5), as being from 10.00 pm to 8.00 am. Nonetheless, the claimant’s evidence was that her working pattern did not change. The best that the tribunal can make of this is that the claimant appears to have, in practice, attended the workplace at 9.00 pm and to have worked until 8.00 am. Again it is noted that there exists a discrepancy between the finishing time of 8.30 am stated by the claimant in her oral evidence to the tribunal and the 8.00 am finishing time stated by the claimant in her claim form to the tribunal. The tribunal resolves this latter disparity by determining that the contractually-agreed finishing time was 8.00 am.

4.7 Leaving aside the forgoing, the essential evidence in regard to the amendment to the previous contractual arrangements was that prior to the amendment there was a fixed payment of £28.44 for the sleep over period, normally for two nights per week, with an additional disturbance rate payable for disturbances of more than 30 minutes, awarded by time in lieu. In the new or revised contract terms the employer classified matters under significantly different arrangements. These latter terms defined the working hours as being five hours per week normally over two nights. This work was to be carried out on a split-shift basis, firstly, from 10.00 pm to 11.00 pm and then from 7.30 am to 8.00 am. The rate specified was £6.66 per hour for these hours of work. The hours stated in these written contract terms appear to be curious as they appear to total only 1 and ½ hours per night measured time as stated, whereas the contract, in the same clause (paragraph 5), provides for five hours per week normally over two nights, being 2 and ½ hours per night measured time. It seems therefore more probable to the tribunal that the actual starting time was 9.00 pm as the claimant stated it to be at all times in her evidence. The tribunal has not recorded that being expressly controverted by the respondent. Paragraph 6 indeed mentions “9.00 pm” and the best interpretation that can be made is that the reference to “10.00 pm” in paragraph 5 appears to be a typographical error on the part of the respondent. In addition there was a concept introduced of the employer providing “sleep in facilities” (in the workplace). The claimant was to receive remuneration of £32.85 “per sleeping period”. Thus, in place of the earlier salary of £28.44 “per night”, the working evening or night was in the new terms divided into two quite distinct categorisations. In addition, any disturbance period beyond 30 minutes whilst using the sleeping facilities would be paid at £6.66 per hour for “disturbance time” when the sleeping facilities were being used. The revised contract classified time spent sleeping as “unmeasured time” between the hours of 11.00 pm and 7.30 am.

4.8 Although the revised contract terms were stated by the respondent as being effective from 1 July 2010 (albeit with continuous employment for statutory purposes stemming from 2 October 2006) the claimant contended that she did not in fact receive a copy of the revised contract of terms until 2011. The respondent called no evidence to controvert that assertion on the claimant’s part. In 2011 the claimant appears to have experienced some difficulty concerning working tax credits. As a consequence, the claimant had discussions with management about the contractual terms. The claimant raised the matter with her trade union, NIPSA, contending that the payment for the sleep over duty did not accord with the provisions of the Working Time Regulations, 1998. The matter was pursued thereafter, resulting in this claim being brought before the tribunal.

4.9 Insofar as material, the claimant’s evidence to the tribunal was that there were many interruptions to her sleep including interruptions caused by residents in the facility requiring attention at night time and also on account of fire alarms being activated. This evidence was challenged in cross examination on behalf of the respondent. The claimant did concede, when faced with written records in that regard made available to the tribunal, that in the period from 1 March 2011 to 31 March 2013, that being a period of over two years, there were only four occasions when interruptions occurred for periods in excess of 30 minutes. The claimant did nonetheless contend that there were many minor interruptions for periods of less than 30 minutes, in practice.

4.10 NIPSA, on behalf of the claimant, wrote to the respondent by letter dated 7 September 2013 making the claim that remuneration afforded to the claimant did not accord with the provisions of the Working Time Regulations 1998 and the proper rate for the National Minimum Wage. A matter was also raised regarding an additional, voluntarily undertaken, eight-hour shift for cooking duties and an issue relating to holiday pay.

4.11 The tribunal did not need to determine any other material findings of fact to reach its determination in the case.

THE APPLICABLE LAW

5. The statutory provisions in regard to the right not to suffer unauthorised deductions are contained within Article 45 of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) which reads as follows:-N.I.

5.1 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.

(2) In this Article “relevant provision”, in relation to a worker's contract, means a provision of the contract comprised—

(a) in one or more written terms of the contract of which the employer has given the worker a copy on an occasion prior to the employer making the deduction in question, or

(b) in one or more terms of the contract (whether express or implied and, if express, whether oral or in writing) the existence and effect, or combined effect, of which in relation to the worker the employer has notified to the worker in writing on such an occasion.

(3) 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 a deduction made by the employer from the worker's wages on that occasion.

5.2 The National Minimum Wage Regulations 1999 (the “NMW Regulations”) provide for the meaning, respectively, of “time work”, “salaried hours work” and “unmeasured work” these being respectively defined at Regulations 3, 4 and 6. It is thus provided at Regulation 3 that “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;

(b) work that is paid for under a worker’s contract by reference to a measure of the output of the worker per hour or other period of time during the whole of which the worker is required to work, and is not salaried hours work; and

(c) work that would fall within paragraph (b) but for the fact that the worker is paid by reference to the length of the period of time alone when his output does not exceed a particular level.

It is provided in Regulation 4 that “salaried hours work” means (a) work that is done under a contract to do salaried hours work; and (b) that falls within paragraph (6) of Regulation 4 of the NMW Regulations. Paragraph (6) provides that the work done under a contract to do salaried hours work that falls within this paragraph, and is therefore salaried hours work, is work in respect of which the worker is entitled to no payment in addition to his annual salary, or to no payment in addition to his annual salary other than a performance bonus.

Regulation 6 of the NMW Regulations provides for the meaning of “unmeasured work” which means any other work that is not time work, salaried hours work or output work including, in particular, work in respect of which there are no specified hours and the worker is required to work when needed or when work is available.

5.3 The NMW Regulations, in addition, at Regulation 15 (provisions in relation to time work) and at Regulation 16 (provisions in relation to salaried hours work) provide as follows:-

Regulation 15:

“(1) Subject to paragraph (1A), time work includes time when a worker is available at or near a place of work for the purpose of doing time work and is required to be available for such work except where—

(a) the worker’s home is at or near the place of work; and

(b) the time is time the worker is entitled to spend at home.

(1A) In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being time work when the worker is awake for the purpose of working. N.I.

Regulation 16:

“(1) Subject to paragraph (1A), time when a worker is available at or near a place of work for the purpose of doing salaried hours work and is required to be available for such work shall be treated as being working hours for the purpose of and to the extent mentioned in regulation 22(3)(d) and (4)(b) except where—

(a) the worker’s home is at or near the place or work; and

(b) the time is time the worker is entitled to spend at home.

(1A) In relation to a worker who by arrangement sleeps at or near a place of work and is provided with suitable facilities for sleeping, time during the hours he is permitted to use those facilities for the purpose of sleeping shall only be treated as being salaried hours work when the worker is awake for the purpose of working.

THE CASES REFERRED TO

6. The tribunal was referred by the parties in submissions to the following cases:-

William Anderson v Jarvis Hotels Plc [2006] UKEAT 0062_05_3005

British Nursing Association v Inland Revenue [2002] EWCA Civ 494

Scottbridge Construction Limited v Wright [2003] IRLR 21

MacCartney v Oversley House Management [2006] UKEAT 0500_05_3101

City of Edinburgh Council v Lauder & Ors [2012] UKEATS/0048/11BI

South Manchester Abbeyfield Society Limited v Hopkins & Anor [2011] IRLR 300

Walton v The Independent Living Association [2003] EWCA Civ 199

Sindicato de Medicos de Asistencia Publica v Conselleria de Sanidad y Consumo de la Generalidad Valenciana [2000] ECR I-7963 (“SIMAP”)

Landeshauptstadt Kiel v Norbert Jaeger [2003] ECR I-08389 (“Jaeger”)

THE SUBMISSIONS

7. For the claimant, Mr Boomer submitted that this was a relatively straightforward case in that the case was a claim grounded in contract and the case related also to the provisions of Article 45(1)(3) and Article 55 of the 2006 Order (the latter being the provision under which a worker may present a complaint to an industrial tribunal). The claimant’s case was that she was contracted to do these sleepover periods. That was her job and she was entitled to be paid the appropriate rate of pay for these hours of work. Disturbance occurrence and allowance was not relevant to the case, so Mr Boomer contended. The claimant’s case was that the contractual rate of pay had indeed been conceded in October 2008 when the respondent agreed to pay the claimant the National Minimum Wage (“NMW”) rate for the hours of work between 9.00 pm and 11.00 pm. That set the claimant’s normal hourly rate of remuneration not only for those hours but also for any additional hours of work which the claimant undertook. For the claimant it was thus contended that this figure ought to be applied to the working time when the claimant was engaged in these sleep over periods.

8. Mr Boomer’s submission was that the claimant did not need to make a case under the NMW Act or NMW Regulations for the reason that this had already been conceded by the respondent. He referred the tribunal to the case of Anderson v Jarvis Hotels Plc which case he contended “was on all fours” with the claimant’s case. He also referred, without going into any specific detail, to the lengthy line of European jurisprudence including the cases of SIMAP and Jaeger (what might be referred to as the “doctors on call” cases). The representative submitted that these authorities ran contrary to the respondent’s case regarding NMW. There was very clearly a requirement for the claimant to be on the work premises in regard to any sleep over periods and there was a requirement to be available to carry out whatever work was necessary during these sleep over periods, if interrupted. The claimant was not on the premises during these times in a voluntary capacity, but rather was required to be there. That was the purpose of these contractual hours. This must therefore be considered to be working time throughout the whole of the period. This was the claimant’s work regardless of any working duties and on call duties. The submission was that this was so held by the EAT in Anderson v Jarvis Hotels Plc. The frequency of any work done in this time was not a necessary characteristic of whether this was working time or not. The respondent’s defence was noted that this was “unmeasured time” during the sleep over period. Mr Boomer asserted that this was not a proper defence to the matter. The claimant did not fall within the ambit of Regulation 22(a) (b) or (c) of the Working Time Regulations (Northern Ireland) 1998 and that was irrelevant. This was a claim grounded in contract and working time could be clearly measured. The claimant was therefore entitled to be paid the appropriate rate of remuneration from October 2006 to July 2010. This would be the NMW rate as conceded by the respondent. From July 2010 onwards the rate of remuneration was £6.66 per hour for every hour of the sleep over periods. Mr Boomer indicated that the claimant had raised a formal grievance regarding this matter in a letter of 7 September 2011 sent on her behalf by NIPSA to the respondent. There had been a deficiency in wages amounting to a series of unlawful deductions running since 2006.

9. For the respondent Mr Hamill submitted, initially, that it was conceded that the said letter of 7 September 2011 from NIPSA constituted a grievance letter. Mr Hamill contended that without the NMW Regulations the claimant simply had no case. Counsel did suggest that some of the case law in respect of working time was, to a degree, contradictory or unhelpful. Mr Hamill referred the tribunal to the learned author of Harvey in that respect. Mr Hamill made it clear that the respondent did not concede that the sleep over period was indeed working time. The tribunal, Mr Hamill submitted, was required to concentrate upon the core duties of the claimant and this was referred to in much of the case law. In the Anderson v Jarvis Hotels Plc case the claimant was a hotel night manager and the nature of the role required to be examined in that and in other cases. The focus at all times had to be on the purpose of the contract, it was submitted. Counsel referred the tribunal to the case of British Nursing Association v Inland Revenue. In that case the facts were that nursing staff were engaged in manning a telephone line and their core duties were to provide support to the organisation. This was properly to be classified as working time and the NMW Regulations were indeed material. However most of the factual scenarios to be found in the cases cited were not on all fours with the instant case. A case which however was identical was the case of City of Edinburgh Council v Lauder and that particular case was indeed on all fours with the instant case. In the case of the claimant her core duties were the assisting of residents throughout the period from 9.00 pm until 11.00 pm and again from 7.30 am to 8.00 am. The core duties were performed during these hours. The claimant was not a duty manager (as in Anderson v Jarvis Hotels Plc) nor was she a night watchman (as in Scottbridge Construction Limited v Wright). This was a contract with a split shift. That distinguishes the case from British Nursing Association v Inland Revenue and Anderson v Jarvis Hotels Plc and suggests that City of Edinburgh Council v Lauder is on all fours. In looking at the British Nursing Association case it is important to focus upon three factors. Firstly, one must examine the times when the claimant was working at the core duties. Secondly, one must examine when the claimant was engaged in the rest period and was not performing the core duties. Thirdly one must examine how the pay was calculated with reference to different periods, with a specific pay rate of £6.66 per hour and then everything else being remunerated at a figure of £32.85. Regulation 15(1A) of the NMW Regulations governed the claimant’s pay during the time the claimant was awake and was working. That being the case, the employer could set a rate of pay at whatever rate it desired for that latter period, in this case the rate being set at a figure of £32.85. The case accordingly fell fairly and squarely within the Regulation 15(1A) exception, as provided. The claimant had maintained that her case was grounded in contract. However, Counsel submitted, the respondent as the employer in this case had fully complied with the written terms of contract, in every respect. The only possible case that the claimant could maintain was a case brought under the statutory provisions. However these provisions were subject to the Regulation 15(1A) exception. The Working Time Regulations 1998 were not relevant to the case. The NMW Regulations had what might be described as a “get out” which applied to the employer’s approach to the matter in the instant case. The tribunal was then further referred by Counsel to the cases of South Manchester Abbeyfield Society Limited v Hopkins and Walton v The Independent Living Organisation. Counsel suggested that the latter case dealt with a slightly different issue but it was important to note that these were cases brought under the NMW Regulations. Counsel agreed with Mr Boomer that the matter of any degree of interruption was not central to the case. However, even if that where so, there were practically no interruptions whatsoever throughout the course of the measured two-year period. The claimant had been quite unable to draw to the tribunal’s attention any material interruptions of significance under cross-examination in the case. The tribunal could only have regard to the contractual provisions in force since 2010. Any purported claim in respect of any period prior to that was out of time.

10. In reply to these submissions for the respondent, Mr Boomer referred the tribunal to City of Edinburgh Council v Lauder and to Scottbridge Construction Ltd v Wright. These cases focussed the tribunal on what was the job, Mr Boomer submitted. Part of a claimant’s job was to do sleep over duties. The question of interruptions or disruption was not relevant to the matter in any sense. The City of Edinburgh Council v Lauder case was not relevant and did not sit on all fours with the instant case. In that case the claimants were in tied accommodation with nominal working hours and with on call duties in addition to their normal working hours. The City of Edinburgh Council v Lauder case related to the NMW. That was not what the instant case was about. The respondents had agreed normal hourly rate of pay in 2008. Mr Boomer contended that the claimant did not accept that there were two separate periods of time to be looked at. The respondent had not offered any rationale as to why the period from 11.00 pm onwards should be classified as unmeasured time. The case of Anderson v Jarvis Hotels Plc was central to the matter.

THE TRIBUNAL’S DETERMINATION OF THE ISSUES

11. The tribunal has made mention above of the initial contractual terms and what was thereby provided and then to the changes sought to be introduced to contractual terms by the respondent in 2010. As has been mentioned, the job title was amended to “support worker”; the hours of work were defined as a “five hour week” worked on a split shift on two days from 10.00 pm (sic.) to 11.00 pm and from 7.30 am to 8.00 am. There was a period classified as “unmeasured time” between 11.00 pm and 7.30 am. It is clear to the tribunal that these changes introduced by the employer bore very much in mind the provisions of the NMW Regulations which had become operative with effect from 1 April 1999. It seems that the claimant had attended in 2010 a meeting with her manager where the new terms were verbally put to her. The claimant might have regularly requested a copy of the new contractual terms but for some reason (unexplained to the tribunal if that was the case) these were not afforded to her until June 2011. She did not sign acceptance but nonetheless the claimant did, in effect, acquiesce in a de facto acceptance of these new terms; the claimant, so to speak, “went along” with these new terms. On behalf of the claimant Mr Boomer did concede that the claimant de facto worked under these terms and, materially, did concede that the claimant did not in any sense “work under protest”.

12. The respondent classified the contract both as an unmeasured time contract with reference to the NMW Regulations, specifically Regulation 6, and also as time work specifically with reference to Regulation 3. For the claimant, it has been argued that this was, in its entirety, “salaried hours work” and did not encompass any “unmeasured time”. This assertion was advanced notwithstanding the expressly stated provisions of the contract (at paragraph 5) that the claimant would be required to work 5 hours per week, normally over two-nights per week on a split shift basis from 10.00 pm to 11.00 pm and then 7.30 am to 8.00 am and, in addition that the respondent would provide sleep in facilities on site, which the claimant might use between 11.00 pm and 7.30 am and, specifically, that time spent sleeping would be classified as “unmeasured time.” It is the case that the claimant could be interrupted between the hours of 11.00 pm and 7.30 am. The claimant was provided with a room and a bed and there was a facility for an alarm or a “buzzer” whereby the claimant could be contacted or aroused from sleep if required; she could thereby identify the resident who might have been seeking attention. Minor interruptions might perhaps have been relatively frequent, but significant interruptions that subsisted beyond 30 minutes were rare indeed. Having said that, this is only insofar as the issue of interruptions might have any material bearing on the case. Mr Boomer submits that these are irrelevant and a similar position is adopted by Mr Hamill, to a substantial extent. The claimant was required to be present on the work premises throughout the period from 11.00 pm to 7.30 am. She thus had to carry out occasional duties including responding to any emergencies as and when these might occur. She was at the employer’s disposal throughout this period of time. She could not leave the premises without some manner of permission, it appears, as her contract obliged her to be present, although she could sleep during the stated hours. In the period between 11.00 pm and 7.30 am the claimant was paid, in accordance with these contractual terms, not by reference to any hourly rate but by reference to some other factor. The tribunal has been referred to the case of Walton v The Independent Living Organisation. At paragraph 31 of that judgement, Lord Justice Aldous suggests that the correct approach is to look at all of the facts, including the type of work that is involved, and then to ascertain whether the worker is paid by reference to the time for which the worker works or by reference to something else. This is clearly a decision for the tribunal to make upon the facts of any given case. Mr Hamill submits that this period between 11.00 pm and 7.30 am consists of an unmeasured time period. Mr Boomer refers the tribunal to Anderson v Jarvis Hotels Plc for assistance. Notwithstanding Mr Boomer’s suggestion that this latter case is on all fours with the instant case, in that case the contract was not structured upon similar terms to the instant case. Anderson v Jarvis Hotels Plc was a case pursued on contract and it seems was not advanced as a claim under either the Working Time Regulations 1998 or the NMW Regulations. There was no express reference made to “unmeasured time”, as far as this tribunal is aware from the case report. In regard to the facts of that case, Mr Anderson worked as Guest Care Manager at an Edinburgh hotel where he was required to sleep over in the hotel, primarily to deal with emergencies. Material to that case was the fact that on one occasion Mr Anderson was disciplined for having left the hotel during one such sleep over period. It appears to have been necessary to have Mr Anderson and also a night porter present in the hotel at night for health and safety and fire regulation reasons. The EAT, per the Honourable Lady Smith, found that Mr Anderson was subject to employer requirement throughout the sleep over periods. The reason that he slept over in the hotel was that the employer was under an obligation to have at least two employees present there overnight for health and safety and fire regulation purposes. The requirement that Mr Anderson remained in the hotel premises during sleep over periods was of such significance that he was indeed disciplined for leaving the hotel during such a period. He had to be in the hotel; he met the employer’s needs throughout each sleep over period and being present in the premises was, primarily, what he was employed to do during sleep over periods. That was, accordingly, determined by the EAT to be his "work". But the tribunal notes that the contract in the instant case is structured somewhat differently. Having conducted a thorough examination of all the authorities cited as these have been mentioned in the respective submissions, the tribunal has been unable to identify any authority which, in factual terms, is indeed precisely on all fours with the instant case.

13. However, it is nonetheless quite possible to extract certain principles from the various cases cited in argument which might bear a degree of helpful application to the facts of this case. Firstly, an employee can properly be regarded as working even though he or she is asleep and will be so regarded if the place of rest is the employer’s premises and if the reason for rest at that location is that the employer requires the employee to be at those premises for the employer’s purposes. In those circumstances the employee cannot properly be regarded as enjoying a rest period (see Anderson v Jarvis Hotels, per the Honourable Lady Smith at paragraph 21). Secondly, it is possible to be at home and working, in other words not at or near a defined specific place of work. However, home working specifically falls outside the ambit (see Regulation 15(1) (b)) of the NMW Regulations). Indeed it is noted that British Nursing Association v Inland Revenue (the nursing home working case) appears to be somewhat confined to its own specific facts which do not coincide with the facts of the instant case, but nonetheless certain principles were enunciated by the Court of Appeal in that case which have more general application and interest. Thirdly, Regulation 15 of the NMW Regulations only appears to arise in the so-called “on call” cases, where a worker is not in fact working but is “on call” waiting to work. Thus, for example, a night watchman, such as in Scottbridge Construction v Wright, was not “on call” under the terms of Regulation 15 of the NMW Regulations. In that latter case the Inner House of the Court of Session found that the fact that the night watchman had little or nothing to do during certain hours when he was permitted to sleep did not take away from the fact that he was throughout in attendance as a night watchman and at any time was required to perform duties, the Court of Session in so determining rejecting the employer’s argument that the period when the watchman was asleep was not to be treated as time work. Fourthly, as exemplified in Walton v Independent Living Association, it is possible to have a contract constructed upon the basis of an “unmeasured time” working arrangement. Accordingly, such work is paid not by reference to the time actually worked but by reference to some other factor. Thus if a tribunal determines that all or part of a contract is paid not by reference to the time for which the employee actually works but rather by reference to some other factor, all or part of the contract can be (as is the case in Walton v Independent Living Association) classified as being unmeasured work within NMW Regulations, Regulation 6 (and matters must thus be calculated in accordance with Regulations 27 and 28). Fifthly, it is noted that in the EAT case of South Manchester Abbeyfield Society Limited v Hopkins, after helpfully reviewing the authorities, the judgement of Judge Reid QC (at paragraph 38) observes that the NMW Regulations cases illustrate a clear dichotomy between those cases where an employee is working merely by being present at the employer’s premises (for example the night watchman) whether or not provided with sleeping accommodation and those where the employee is provided with sleeping accommodation and is simply “on-call”. In the latter class of case the employee may be able to rely upon the Working Time Regulations to assert that all of the hours on-call are working hours within the Working Time Regulations, to assert a breach of those Regulations and institute a claim for compensation arising from the breach. However in that latter class of case the employee cannot bring into account all the hours spent on-call for the purposes of a NMW claim. He or she can only do so (because of the terms of the NMW Regulations 15(1A) or 16(1A)) for such hours as he or she is awake for the purpose of working.

14. In this case there is a claim made which Mr Boomer submits is made under contract and under the provisions of the 1996 Order mentioned, but which Mr Boomer endeavours to distance from the NMW Regulations. However, having carefully considered the arguments, the tribunal makes the determination that the NMW Regulations are and must be an intrinsic part of the essential focus of the tribunal in this case.

15. It is clear that the claimant, notwithstanding some initial resistance, as has been conceded, did accept a revised contractual arrangement which, expressly and without doubt, includes a period which is classified as being “unmeasured time”. That is the key to the tribunal’s determination of the matter. Notwithstanding that the tribunal was not referred to any case which bears facts of precisely the same nature as the instant matter, nonetheless some useful principles and guidance may be gleaned from the various cases cited in argument and mentioned above. In the light of the principles to be taken from the authorities and the application of the relevant statutory provisions, the tribunal’s determination is that the respondent was entitled to endeavour to restructure the contractual arrangements as these were applied to the claimant in the manner in which that was done in this case. The claimant, as has been helpfully conceded by her representative, de facto accepted these revised terms of contract. These revised terms, expressly, provided that between two periods of measured working time, there was to be a period described as “time spent sleeping” and categorised as “unmeasured time” running from 11.00 pm until 7.30 am. That period clearly falls within what is envisaged by the NMW Regulations, Regulation 15.

16. In the relatively recent case of City of Edinburgh Council v Lauder & ors the tribunal noted the clear and useful analysis of the relevant principles made by the Honourable Lady Smith, who it is noted had indeed participated in some of the other (earlier) cases cited in argument. In that case ten employees of the City of Edinburgh Council who had jobs which used to be known as ‘sheltered housing wardens’, presented pay claims to the Employment Tribunal. They contended that they were being paid less than the National Minimum Wage once time spent on call was taken into account.

Paragraph 471 of the judgement reads:-

“Mr Gorton was right, in my view, to focus firstly on the fact that these Claimants had what he referred to as ‘core’ hours of work – they are referred to by the Tribunal as the Claimants’ normal working hours but nomenclature is not important. The point is that they were employed under a contract which was for 36 hours work per week, to be worked between the hours of 8.30am and 17.30, for a stated remuneration related to those periods of work. The case thus falls fairly and squarely into the second category discussed above – the ‘on call’ category where the worker’s main job is separate from and done at a time other than the ‘on call’ period. It is, I agree, exactly the sort of case which is envisaged by reg 16(1A). The Claimants were available near to their place of work, were provided with suitable facilities for sleeping there and were not expected or required to be awake unless called on to work during those ‘on call’ hours. For the reasons explained by the Court of Appeal and the Inner House, referred to above, whilst the expression ‘on call’ is not used in the legislation, it is a convenient and accurate way of describing the situation to which regs 15 and 16 apply”.

17. The tribunal is required to make a determination in this case, given the admittedly somewhat difficult task of drawing a clear distinction upon the facts between those cases that are to be properly classified as “on-call” cases (such as for example City of Edinburgh Council v Lauder & ors ) and those (such as for example Scottbridge Construction v Wright ) where that designation does not properly apply. In the latter category, the provisions of NMW Regulations 15(1A) or 16(1A) do not come into play at all. Having given careful consideration to the matter and to the principles to be taken from the various cases cited in argument, the tribunal accepts the respondent’s representative’s submission that the working evening was, contractually, broken down into three distinct periods, with a period of unmeasured time in regard to which a fixed sum of remuneration applied “sandwiched” between two periods of specific time in respect of which an hourly rate of remuneration applied. Although not precisely similar, the instant case has certain of the characteristics of the City of Edinburgh Council v Lauder contractual arrangements and thus the tribunal’s determination is that the application of NMW Regulation 15 (or 16) is clear and appropriate. On the facts of these specific contractual arrangements ( which, notwithstanding the claimant’s initial resistance to the coming into effect of the contractual changes, nonetheless are to be taken to be mutually agreed, as conceded by Mr Boomer), the claimant’s contract had what could be described as “core hours” of work performed for a stated remuneration which related to those prescribed periods of work. The claimant’s “core hours” portion was separate from and was done at a time other than the “on call” (sleep-in) period that was, in terms of the contract, “sandwiched” between these core hours and in regard to which latter period the NMW Regulations provisions did apply. Although the arrangement is, on account of the “sandwiching” provisions, factually different to City of Edinburgh Council v Lauder, nonetheless the similarity is that in both cases there exists an arrangement for “core hours” of work performed for a stated remuneration and also “on call” periods, separate to the former as defined in the contract.

18. The tribunal accordingly finds the foregoing observations made in City of Edinburgh Council v Lauder & ors to be useful in regard to the instant case and accepts the respondent’s representative’s submission that the working evening was, contractually, broken down into three distinct periods, with a period of unmeasured time in regard to which a fixed sum of remuneration applied “sandwiched” between two periods of specific time in respect of which an hourly rate of remuneration applied. This “sandwiched” period was an “on call” period for the purpose of the NMW Regulations. Therefore, although not precisely similar, the instant case has certain of the characteristics of the contractual arrangements present in City of Edinburgh Council v Lauder & ors and thus the application of NMW Regulations is clear.

19. To summarise matters therefore, in this case the claimant was a worker who by arrangement was afforded sleeping facilities at the place of work. Thus time during the hours she was permitted to use those facilities for the purpose of sleeping shall only be treated as being time worked when she was awake for the purpose of working, as is provided by the NMW Regulations. In that regard, there was provided a contractual “disturbance allowance” system that was available and that was implemented in practice from time to time. Accordingly, the respondent was entitled contractually to agree a specific sum for wages to cover that “sleep in” period and to set that apart from the hourly rate otherwise agreed of £6.66 for the remainder of the contractual working time. Mr Boomer endeavoured to steer the tribunal’s focus away from the NMW Regulations and to assert that the case was a relatively simple one grounded in contract only and made with reference to Article 45 of the 1996 Order. He stated that, as it were, the “battle was won” when the respondent conceded in 2008 the applicability of the NMW. But that argument disregards the significant changes that came about in 2010, with the introduction of the new contractual terms. The tribunal does concur with Mr Hamill’s contention on behalf of the respondent that, in the absence of any reference to the NMW Regulations, there is no proper focus for the tribunal in this case and thus the respondent’s argument prevails in that respect. That is so for the reason that there is no case satisfactorily made out, upon the evidence and determined facts, that the respondent breached the terms of contract. Any case that might have existed and that might have been available to the claimant to pursue under the earlier contractual terms subsisting up until 2010 was not pursued and is out of time and cannot be linked to the argument that there was a continuing series of unlawful wages deductions subsisting up to the present time. Further, there is no case satisfactorily made out, upon the evidence and determined facts, that there has been any 1996 Order, Article 45, deficiency in wages amounting to a series of unlawful deductions running since 2010 in the matter, as had been contended by the claimant (linking that to the earlier period). There is no case satisfactorily made out under any of the provisions of the NMW Act and the NMW Regulations.There is no basis for the claimant’s case made out under contract and the respondent, in the tribunal’s determination, has fully adhered to the 2010 contractual terms as far as the facts of the case demonstrate such as are derived from the evidence available to the tribunal in the matter. For completeness, although the case primarily concerned and focused upon the foregoing issues, the tribunal also makes no determination in favour of the claimant, based upon any facts found and any argument advanced or deemed to be advanced, that the claimant was denied any holiday entitlement properly due, whether under contract or in regard to any statutory provision.

20. Accordingly the tribunal’s unanimous determination is that the claimant’s complaints cannot succeed and the claims are dismissed by the tribunal, without further order.

Chairman:

Date and place of hearing: 3 June 2013, Belfast

Date decision recorded in register and issued to parties: