Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:  429/15

 

 

 

CLAIMANT:                          Michael Crossan

 

 

RESPONDENT:                  Healy Brothers Ltd

 

 

 

DECISION

The unanimous decision of the tribunal is that

 

(1)          The claimant was not automatically unfairly dismissed for refusing to work in breach of the Working Time Regulations contrary to Article 13A of the Employment Rights (NI) Order 1996.

 

(2)          The respondent’s applications for costs are refused for the reasons given at
paras 41 and 42 below.

 

 

Constitution of Tribunal:

 

Employment Judge:          Employment Judge McCaffrey              

 

Members:                             Mr H Stevenson

                                                Mrs F Cummins     

 

Appearances:

 

The claimant was represented by Ms Denise Walker of the GMB Union.

 

The respondent was represented by Mr Brian Kennedy, QC and
Ms Bobbie-Leigh Herdman, Barrister-at-Law instructed by Rosemary Connolly Ltd Solicitors.

 

THE ISSUES

 

1.         The claimant was employed by the respondent as a full-time funeral assistant working a five day week from 8.00 am to 6.00 pm with a half hour break for lunch, namely 47½ hours per week.  In addition the claimant was on a rota along with the other funeral directors and assistants employed by the respondent to be on call two nights per week to take calls from prospective customers and to carry out other duties if required.  The issues which the tribunal had to consider were as follows:-

 

(a)     Was the claimant’s on-call duty “working time” within the meaning of the Working Time Regulations (Northern Ireland) 1998 (as amended) (“the 1998 Regulations”)?

 

(b)     Did the respondent’s requirement for the claimant to carry out on-call duties tip him over the limit of 48 hours per week permitted by the 1998 Regulations?

 

(c)     Was the claimant automatically unfairly dismissed under Article 132A of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”) because he refused to work in breach of the 1998 Regulations?

 

(d)     Is the respondent entitled to an award of costs against the claimant in relation to:

 

(i)        the costs incurred by the respondent in defending a disability discrimination claim by the claimant which was subsequently withdrawn on 3 September 2015? 

 

(ii)       the adjournment of the case on 28 September 2015 to allow for a witness from the Social Security Agency to be called to give evidence in relation to the case?

 

THE FACTS

 

2.         The tribunal received witness statements and heard oral evidence from the claimant from Mr Thomas Healy of the respondent company and from Damian Mussen and Glen Baxter, also employees of the respondent company.  In addition and as a result of a witness summons issued at the tribunal’s own motion, we heard evidence from Mrs Tracey McCluskey, a manager employed by the Social Security Agency.  Also, a number of documents were opened to us in the course of the hearing.  On the basis of the evidence heard, we make the following findings of relevant facts.

 

3.         The claimant was employed as a permanent full-time funeral assistant by the respondent company from 21 February 2011.  Prior to this he was employed on a temporary part-time basis by the respondent company for a number of years.  He was issued with a contract of employment in 2011 and in addition he had signed an opt-out agreement, confirming that he agreed to work more than 48 hours in a week if required and that he would provide three months notice should he wish to cancel the opt-out agreement.  The claimant’s usual hours of work, in common with other funeral assistants employed by the respondent were from 8.00 am to 6.00 pm, with a half hour break for lunch.  The on-call period was from 6.00 pm to 8.30 am in the morning and the claimant and his colleagues were on a rota which meant they were on-call two nights per week.  Mr Healy explained that this meant the on-call people took the phones home with them and dealt with any out-of-hours calls.  These calls were usually from relations of someone who had died, or may be inquiries about funeral arrangements.  In addition they could be asked to attend viewings at the respondent’s funeral home, or if necessary go out to a residential home or a hospital to attend to the removal of a deceased person.  The on-call staff would also perform church removals, attend at viewings at the funeral home and consult with families regarding funeral arrangements if required.  The claimant and his funeral attendant colleagues were paid an allowance of £5,000.00 per annum to cover the work done when they were on-call.

 

4.         It was the claimant’s evidence that,

 

                        “While on-call I was at the disposal of my employer, carrying out the activity and duties, I was not free to conduct my personal business quite often on-call, either being at the funeral home for viewings, church removals or attending the place of death to arrange removal.”

 

5.         The evidence given by Mr Healy was that it was unusual for a person actually to be called out from their home when they were on-call.  He agreed that it would not be certain how many phone calls or calls there might be to be dealt with when on-call, due to the nature of the business.  However he indicated that during the six months before the claimant went on sick leave, the respondent firm had dealt with 187 funerals.  He indicated that on only one occasion had the claimant been asked to attend an evening viewing of the remains at the funeral home, and on another occasion the claimant had taken a phone call from a bereaved family at 7.45 am.  Other than this, it was his evidence that the claimant had not had to carry out any other specific duties out-of-hours.  The claimant disputed this, but did not give any more detail either in his own evidence-in-chief or on cross-examination regarding his involvement in on-call duties.  Specifically, he did not indicate how frequently he was called out or whether, as the respondent asserted, many of the calls were dealt with by telephone from the employee’s own home.  Mr Healy said, that only about 20% of funerals required some out of hours work and this was not disputed by the claimant.

 

6.         In March/April 2014 the claimant went off work sick due to severe back and knee pain.  He remained on sick leave for some months and was subsequently sent a letter by Mr Tom Healy of the respondent company on 22 September 2014.  That letter noted that the claimant had been absent from work since April 2014 and asked for confirmation that they could approach the claimant’s GP for an opinion as to whether or not the claimant was fit to resume work.  The claimant replied, confirming that he was content for the respondent to approach his doctor.  He went on to say,

 

                        “My doctor has confirmed that I may be “fit for work” commencing 10/11/2014 on the condition that changes be made within Healy brothers that would help me to return to work.” 

 

            The claimant went on to set out his working week as 50 hours with a minimum of two nights from 6.00 pm to 8.00 am (minimum 28 hours).  The claimant then said,

 

                        “This exceeds the Working Time Regulations and my doctor and I feel that it is best I cancel the opt-out agreement.  Therefore when I return to work I am requesting to work an average of 48 hours a week according to the Working Time Regulations.” 

 

            The letter continues with a formal cancellation of the opt-out agreement and the claimant said he was giving the respondent five weeks’ notice of cancellation, rather than the thirteen weeks required by his contract.

 

7.         On 2 October 2014 the claimant’s GP Dr. Peter McHugh wrote to the respondent in relation to the claimant’s health.  He indicated that the claimant had “improved significantly”.  He did however say that he considered the claimant was not fit to resume the full duties of his post but that it was his opinion the claimant could follow a phased return, with half days for a period of two months which would allow for further improvement.  He went on to say that in his view the claimant was not fit to carry out his on-call duties.  He stated;

 

                        “Given the severe significant osteoarthritis in his left knee he will do well to complete his core duties but will not be fit to do extra.” 

 

            He went on to warn that any over exertion at this stage could result in a relapse of the claimant’s problems.

 

8.         The respondent wrote to the claimant by letter on 7 October 2014, expressing concern about whether the claimant would be able to carry out other requirements of his job including the ability to lift various weights and masses throughout the day and the night; the ability to stand for various times in all weather conditions throughout the day and night; to climb stairs at various locations throughout the day and night; walk various distances and over “ranging terrain” throughout the day and night.  In each instance, they expressed the concern that these activities might aggravate any existing condition the claimant had and asked the claimant to provide evidence to the contrary.  They also expressed concern that the claimant’s condition had been described as “significant” and asked that he provide evidence on the possibility that this condition may arise unexpectedly and cause harm to the claimant and/or his colleagues.  The claimant replied on 10 October 2014 stating,

 

                        “I can confirm/clarify that I meet all the requirements of the job as stated in your letter.” 

 

            He invited the respondent to contact his GP for any further information they required.  He then referred back to his previous letter, indicating that he wished to cancel the opt-out agreement and asking when the respondent would be in a position to confirm if the claimant’s suggested back to work date of 10 November 2014 was achievable from their perspective. 

 

9.         The respondent then emailed the claimant’s GP on 16 October 2014 setting out the duties outlined above.  The email continued,

 

                        “We would be most grateful if you would confirm whether given your knowledge of our employee’s current state of health that he is fit to carry out all of those duties and that in doing so he will not constitute a health and safety risk to another employee.” 

 

            Doctor McHugh replied the same day indicating as follows:-

 

                        “I can confirm that Michael is fit to carry out all the duties mentioned.  He has made excellent progress with the physiotherapy and is anxious to return.  He will not pose a health and safety threat to any of his work colleagues.  I hope this helps.”

 

10.      Following this letter Damian Mussen, the General Manager of the respondent, arranged to see the claimant on 30 October 2014 in relation to his absence and his proposed resumption of work.  He then wrote to the claimant on 3 November 2014.  In that letter he referred to having had the opportunity to consult the Directors and set out in his letter two options for the claimant’s return to work.  The first was a phased return to full employment over a three week period including a phasing in of the claimant’s on-call responsibilities.  Week 3 of the phased return would be a full return to normal duties, five days 8.00 am to 6.00 pm with two nights on call.  The other option was for the claimant to return on a casual basis as a funeral driver.  Mr Healy’s comment about this was that they had a number of casual drivers and that because the drivers were paid a higher hourly rate than the funeral attendants, the casual drivers could on occasion come home with pay almost equivalent (or indeed more than) the amount earned by the funeral attendants.  He agreed however, that given its casual nature, the work was not guaranteed. 

 

11.      In his letter Mr Mussen indicated that he understood the claimant’s return to work date had been proposed as week commencing 10 November.  He confirmed that this was acceptable to the company and asked the claimant to confirm within seven days which set of terms he intended to return to work under.

 

12.      On 12 December 2014 the claimant replied referring to a response letter which he had sent to Mr Mussen on 10 November 2014.  The core of his letter was as follows:-

 

                        “In all my previous communications I have requested to work an average of 48 hours a week, according to the Working Time Regulations.  In your letter dated 3 November you have not given me this option as the options presented from Healy Brothers are to work more than 48 hours per week or resign from my full-time post.  You will be aware that I requested to opt back in as I no longer want to work more than 48 hours a week and submitted two formal requests.

 

                        I have not received any communication from you or from Healy Brothers to discuss how my hours will be adjusted to take account of the above.

 

                        Can you let me know when I should return to work and that my work pattern will be to fit in line with employment regulations?”

 

13.      On 22 December 2014 Mr Mussen wrote again to the claimant noting that he had been absent from work since April 2014. 

 

14.      His letter continued:-

 

                        “The earlier indication from your doctor that you would return to work has not in fact transpired and your continued absence from work is causing significant operational difficulties for the company. 

 

                        Therefore you are required to attend a meeting at Healy Brothers office on Monday 5 January 2015 at 6.30 pm to discuss the situation as regards your return to work.

 

                        You should be aware that in view of the significant operational difficulties being occasioned to the company by your continuing absence and the fact that there has been no clear indication of when you will return means the possible outcome of the meeting is that your employment will be terminated.

 

                        You are entitled to be accompanied to the said meeting by a work colleague or a trade union representative of your choice”.

 

15.      The meeting had to be postponed to enable a union representative to attend with the claimant and following the postponement on 5 January 2015 the claimant wrote to the respondent on 6 January 2015 querying why the person he brought was not suitable.  The final line of his letter reads as follows:-

 

                        “As you know I have not been working since April 2014 and I would like to return to work and average 48 hours a week according to the Working Time Regulations.”

 

16.      The meeting finally took place on 15 January 2015 with Glenn Baxter, the Contracts Manager, in the chair and Damian Mussen as minute taker.  The claimant was accompanied by his union representative, Ms Denise Walker.  Minutes of that meeting were produced to us.  In them the respondent outlined their concern that the claimant’s doctor had said that he was fit to return to work but the claimant was still providing sick lines and claiming sick pay.  Ms Walker indicated that the claimant’s doctor said that he was fit to return to work but not over and above his core hours and that two nights on call would take him over it.  Mr Baxter responded that no one was asking the claimant to do over his core hours and that the Working Time Directive allows for working on-call from home which did not count within the claimant’s core hours.  Ms Walker said that medication the claimant was on helped him relax and sleep,  not taking this medication and doing two nights on-call would not give him enough time to rest or recuperate.  Mr Baxter asked the claimant directly if he was being told that the claimant would not come back to work on-call.  The claimant responded, “Basically yes, I won’t be.  I have stated this a few times.”  The discussion at the meeting covered various other options.  The claimant’s union representative asked if other people could be employed to cover the on-call time.  Mr Baxter noted that the respondent had looked at all possibilities, including looking at someone working 8-6, but that all their funeral attendants worked under the same contracts and they felt it was important that this should be so.

 

17.      The claimant was asked about alternative employment arrangements which could be considered and Ms Walker responded that casual work was not suitable as there were no guaranteed hours.  An offer was put to the claimant to work 16 hours a week but this was not acceptable to the claimant as it would have been a big drop from his previous working hours.  Ms Walker indicated that the two offers made by the respondent were unreasonable and Mr Baxter then asked her, “What is reasonable?”  The reply from Ms Walker was: “Daytime duties 47.5 hours per week, no on-call, a drop to 16.5 hours per week would be too much of a wage drop”. 

 

18.      Mr Baxter asked if this was even though the doctor had said the claimant was fit to return to full duties and Ms Walker indicated that the claimant’s medication did not allow him to do on-call.  In cross-examination, the claimant indicated that he was on medication which he took in the evenings for low mood and depression.  He also explained that he had suffered two significant bereavements around Christmas 2014.  It is relevant to note that at no point in this meeting did the claimant make any reference to suffering from low mood and depression and having medication which he needed to take for that condition.  The correspondence with the claimant’s GP always referred to the claimant’s back and knee problems but made no reference to him suffering from depression or low mood.  At the meeting, Mr Baxter then summarised by asking if the offer of 47.5 hours per week plus two nights on-call or the second offer of casual employment were being refused and the claimant replied, “Yes”.  Mr Baxter said at the end of the meeting that,

 

                        “Michael is highly thought off [sic] by both management and staff and we are trying to come to some other working agreement that suits both Michael’s and the need to the business.  We will go to the Directors to explore all other avenues to enable to get Michael back to work and get back to you within seven days”. 

 

            There followed a meeting between Mr Baxter and Mr Mussen, and the Directors of the company.  This meeting was not referred to in either Mr Healy’s statement or Mr Mussen’s statement and the minutes of that meeting were not opened to us in the course of the hearing although we note from the index there were minutes of a “follow up” meeting in the bundle of documents.

 

19.      Following that meeting Mr Mussen wrote to the claimant saying that careful consideration had been given to the points made by him at the meeting on 15^th, the letter continued:-

 

                        “Having done so and, regrettably, I am of the view that your absence from work over a lengthy and protracted period of time, which has caused ongoing and significant operational difficulties for the company and can no longer be sustained, particularly given that there in [sic] no confirmation of any return date.

 

                        Unfortunately, therefore in those circumstances and in order to safeguard business operations I have concluded that your employment should terminate.

 

                        Accordingly, I determine that your employment will end forthwith.

 

                        Notice pay and accrued holiday pay entitlement will be paid to you.  Your P45 will be forwarded in due course.

 

                        You have the right to appeal this decision and any appeal should be directed to the Directors of the company within five days of the date of this letter giving reasons”.

 

20.      The claimant sent a letter of appeal dated 22 January 2015, again referring to his request to work an average of 48 hours a week and his decision to terminate the opt-out agreement.

 

21.      An appeal meeting was held on 4 February 2015 at which the claimant was entitled to be accompanied.  The appeal was heard by Thomas Healy one of the Directors of the respondent company.  On 6 February 2015 Mr Healy wrote to the claimant to advise that the decision to dismiss had been upheld.  No minutes of the meeting were produced to us.  Mr Healy’s evidence at the hearing was that at the appeal he formed the view that the claimant had no intention whatsoever of returning to his employment.  The claimant was paid notice pay and holiday pay and was dismissed with effect from 21 January 2015.

 

22.      The claimant was in receipt of Employment Support Allowance and remained in receipt of Employment Support Allowance until 1 July 2015 when a full medical assessment was made and it was decided that he was not entitled to Employment Support Allowance.  At the date of the hearing he confirmed that he was in receipt of Jobseeker’s Allowance of approximately £71.00 per week.

 

23.      In relation to his attempts to mitigate loss the claimant confirmed that he had applied for two jobs, one with the Northern Ireland Blood Transfusion Service in November 2014.  Although he had not been offered a post at that time the claimant had been placed on a waiting list.  The claimant had also applied in June/July 2015 for a  job with Belfast City Council as a Crematorium Technician.  We were not told if there had been an outcome to that process, but the claimant was still receiving JSA at the date of the hearing.

 

THE RELEVANT LAW   

 

24.      This claim was presented to us as a claim under Article 132A of the 1996 Order which provides as follows:-

 

                        “132A(1) an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if the reason (or, if more than one, the principle reason) for the dismissal is at the employee –

 

(a)      Refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working Time Regulations (Northern Ireland) 1998, that

 

(b)      Refused (or proposed to refuse) to forego a right conferred on him by those Regulations ...”

 

25.      The law in relation to unfair dismissal is to be found at Article 126 and following of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).  In this case it was conceded by the employer that there had been a dismissal of the claimant from his employment on 21 January 2015.  Accordingly it is for the respondent employer to show that a dismissal was fair for one of the reasons set out in Article 130 of the 1996 Order.  Article 130 provides as follows:-

 

                        “130(1) In determining the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

 

(a)       The reason (or if more than one the principal reason) for the dismissal and

 

(b)       That it is either a reason falling within paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

 

(2)        A reason falls within this paragraph if it -

 

(a)       Relates to the capability or qualifications of the employee for performing work of a kind which he was employed by the employer to do.

 

(b)       Relates to the conduct of the employee.

 

(c)       Is that the employee was redundant, or

 

(d)       Is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under a statutory provision ...

 

                        (3)     If any other case where the employer has fulfilled their requirements in paragraph (1), the determination of the question of whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

 

(a)       Depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and

 

(b)       Shall be determined in accordance with equity and substantial merits of the case.”

 

26.      In this case, the claimant appears to have conflated two issues, namely the requirement by the respondent for him to work on-call and whether or not this would have obliged the claimant to work hours over and above 48 hours per week which he may be required to work under the Working Time Regulations.

 

27.      Employers may ask employees to work additional hours only if the employee has consented by signing an opt-out agreement.  In this case the employer had originally asked the claimant (and its other employees) to exclude the maximum period of 48 hours per week under the provisions of Regulation 5 of the 1998 Regulations (as amended).  The claimant had signed the opt-out agreement to agree to do this.  Regulation 5(2) provides that an opt-out agreement may relate either to the specified period of time or apply indefinitely and, that subject to any provision in the agreement for a different period of notice, shall be terminable by the worker giving not less than seven days notice to his employer in writing.  Regulation 5(3) provides that where the contract of employment makes provision for termination of the agreement after a period of notice, that notice period shall not exceed three months.  In this case, the claimant’s contract of employment required an employee to give three months notice if he wished to end his “opt-out” from the 1998 Working Time Regulations.

 

28.      The case law in relation to “on-call” demonstrates that this remains a fraught area of the law.  There are two well known decisions of European Court of Justice namely SIMAP v Conselleria De Sanidad y Consumo De La Generalidad Valenciana c – 03/98 [2000] IRLR 845 and Landeshuaptsadt Kiel v Jaeger c – 101/02 [2003] IRLR 84.  In these cases, doctors in primary health care teams were required to be present at the relevant medical facility whilst on-call but did not actually perform any medical duties in between each call-out.  In Jaeger, a doctor on-call was provided with a room and a bed at the hospital when he was on-call and was expected to stay there, although time spent actually responding to calls did not exceed 49% of the total time on-call.  The finding of the European Court was that in such circumstances all three of the requirements for working time were satisfied: he was working, at his employer’s disposal and carrying out his activity or duties and therefore the time counted as a working time.  They took a different view if the doctor was on-call and required to be contactable but not required to be at the medical facility in that case as in SIMAP.  The third requirement (to carry out activities or duties) was not satisfied unless they were actually called upon to perform their services. 

 

29.      Harvey on Industrial Relations and Employment Law at Division C1 at paragraph 68 and following sets out in detail the case law referred to above and some more recent case law relating to employees at residential care homes and sheltered housing whose home and workplace are one and the same.  This is not however the situation here.  Ms Walker referred us to the case of British Nursing Association v Inland Revenue [2002] EWCA Civ 494 (a decision relating to the National Minimum Wage Regulations) where Lord Justice Burton found that the claimant was entitled to be paid for all of the time that she was available at home to answer calls on behalf of her employer regarding the allocation of nurses under a “bank” system.  Harvey however observes (see Division C1 at paragraph 72) that there are basic schematic differences between the two sets of legislation (i.e. the Working Time Regulations and the National Minimum Wage Regulations) and also there is no parent directive underpinning the National Minimum Wage Regulations so that decisions in relation to the minimum wage may not be automatically applied to the Working Time Regulations.  This is a point which was approved the Northern Ireland Court of Appeal in Blakley v South Eastern Health and Social Services Trusts [2009] NICA 62 where the Court of Appeal found that the fact that Mr Blakley worked under a rota which required him to be on-call for a continuous seven day period once every six weeks did not mean that his entire time “on call” constituted working time as defined in the 1998 Regulations.  He received an additional fixed payment together with payment for the time he worked at the employer’s premises on actual call-outs.  However he was not required to be on the employer’s premises or even at his home throughout the period on-call, but had to be available to deal promptly with any calls.  The response to a call (of which there were an average of over 40 in each seven day period) could vary from directing a tradesman on-site to attend, calling out a tradesman or attending on-site himself.  The Court of Appeal found that time “on-call” other than when the claimant was actually required to come to work was not working time. 

 

REASONS AND DECISION

 

30.      We have considered carefully the evidence in this case and the legislation and case law which applies.  The only claim put before us in relation to unfair dismissal was that the claimant had been dismissed because he had refused to work in breach of the 1998 Regulations.  There was no case made that the claimant’s dismissal was either procedurally or substantively unfair under general unfair dismissal principles.   Specifically, there was no case made that the dismissal was procedurally unfair because Thomas Healy, who heard the appeal, was one of the Directors who may have been consulted by Mr Mussen and therefore also involved in the decision to dismiss the claimant.  As no evidence was led on this issue, we cannot make any finding on it.  The claimant’s normal week when working for the respondent was from 8.00 am to 6.00 pm with a half hour break for lunch namely 47½ hours per week.  Accordingly it is only if his two nights per week “on-call” constitute working time within the meaning of the 1998 Regulations that the claimant would have exceeded 48 hours work under the 1998 Regulations.

 

31.      The system for on-call work was that the person on-call would take the telephones home with him and would be available to answer telephone calls between the hours of 6.00 pm and 8.00 am.  The volume of calls obviously varied from time to time depending on the number of people seeking the respondent’s assistance.  Occasionally there would also be a requirement for those on-call to attend a viewing of the remains at the funeral home or, if someone had died in hospital or a nursing home, to go out at night to help remove the deceased persons remains to the respondent’s premises.  Mr Healy’s evidence to the tribunal was that in the six months before the claimant went off on sick leave he had been actually called out on one occasion during an evening to attend a viewing at the funeral home and on another occasion he had had to take a telephone call early in the morning.  It was his evidence that only about 20% of funerals actually gave rise to calls outside of normal hours. 

 

32.      It is also relevant to note that the right not to work more than an average of 48 hours per week the under 1998 Regulations refers to an average time worked within a particular reference period of 17 weeks (Regulation 4 of the 1998 Regulations).   It is clear, given the evidence before us that the claimant had only two calls made on his time during a six month period and that his average hours would not have exceeded 48 hours per week when rounded up. 

 

33.      We appreciate that the nature of the respondent’s business means that the work for those on-call will be sporadic.  It is probably fair to say that this is a feature of many on-call arrangements.  However, on the basis of the case law of the Court of Justice of the EU in Simap and Jaeger set out above at para 27 and the decision of the Northern Ireland Court of Appeal in Blakley v SE Health and Social Care Trust (see paras 27 and 28 above), we are bound to find that hours on call when the claimant was not actually working for the respondent and/or was not required to be at their premises do not constitute working time within the 1998 Regulations.  Allowing for the sporadic nature of work while on-call, there was no evidence before us to show that the claimant’s hours exceeded an average of 48 hours per week when on-call given the low volume of calls he actually dealt with.  Accordingly, we cannot find that the claimant was dismissed because he refused to work more than 48 hours per week in breach of the Working Time Regulations because the hours he normally worked did not exceed 48 hours, even when on-call. 

 

34.      Because the claimant flatly refused to consider on-call work, the evidence from Mr Baxter and from Mr Healy was that the employer did not move to consider the possibility of the claimant doing fewer days during the week, but with him continuing to do on-call and therefore clearly working within his 47½ hours per week. 

 

35.      The only claim before us is that the claimant was automatically unfairly dismissed under Article 132A of the 1996 Order due to his unwillingness to breach the Working Time Regulations.  This does not appear to us to be the case.  The reason the claimant was dismissed was because, although certified fit for work, he was unwilling to resume work on his contracted basis, i.e. that he would work 47½  hours per week and be available to do on-call duties for which he was paid an additional £5,000 per annum.  The claimant effectively refused to continue doing on-call duties which meant that this put the respondent in some difficulty.  They made offers of alternative work to him, but the claimant had clear ideas as to what he was and was not prepared to do.  He was only prepared to come back to work if he could work 47½ hours per week from 8.00 am to 6.00 pm five days per week without on-call.  When this did not work out, he alleged that there was a breach of the 1998 Regulations.  However for the reasons set out above, it is our finding that the time the claimant’s on-call duties did not actually constitute “working time” under the 1998 Regulations and accordingly he was not required to work over the 48 hours per week.  It follows that the reason for the claimant’s dismissal was not his refusal to work in excess of the 48 hours per week, but rather the claimant’s refusal to continue to work in the working pattern which he had previously done.  It is most unfortunate that this situation should have arisen.  The claimant was clearly a valued member of staff of the respondent, and the respondent made efforts to try and offer the claimant alternative work, but this was not accepted.  The claimant also failed to make any other suggestions for the hours that he could do, apart from saying baldly that he was only content to work 47½ hours per week without any on-call.  In these circumstances, and given the claimant’s continued lengthy absence from work, it is our finding that it was reasonable for the respondent to dismiss the claimant and the claim of unfair dismissal is therefore dismissed. 

 

COSTS

 

36.      The respondent’s representative made an application for costs for work done by them in preparing to meet a claim of disability discrimination and also for the costs of an adjournment on Monday 28 September when the case was adjourned to allow for a witness from the Social Security Agency to be witness summonsed.

 

37.      Ms Walker noted that while the claim had been lodged in January of this year, she was inexperienced in presenting claims for the industrial tribunal and she had also had a period of absence from work which had limited her ability to consider whether the disability discrimination claim was in fact a viable claim.  She had been of the opinion, and had been advised, that the claim was a viable claim, but in light of conversation she had had with the respondent’s representative she and the claimant had decided to withdraw the claim.  She disagreed that the claim was in anyway frivolous or vexatious.

 

38.      The tribunal’s power to award legal costs is set out in the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”).  The general power to make costs orders is set out in Schedule 1 at Rule 38.  Rule 40 provides as follows:-

 

                        “(2)  A tribunal or [employment judge] may consider making a costs order against the paying party when in the opinion of the tribunal [or employment judge] (as the case may be) any of the circumstances in paragraph (3) apply.  Having so considered, the tribunal or [employment judge] may make a costs order against the paying party if it or he considered it appropriate to do so.

 

(3)   Circumstances referred to in paragraph (2) are where the paying party has in bringing the proceedings, or where his representative has in conducting the proceedings, acted vexatiously, disruptively or otherwise unreasonably or the bringing or conducting of proceedings by the paying party has been misconceived.” 

 

            “Misconceived” is defined at Regulation 2 as including “no reasonable prospect of success.”  The maximum amount the tribunal can award in costs is £10,000.

 

39.      The tribunal’s jurisdiction in relation to costs is outlined in Harvey on Industrial Relations and Employment Law Division P1 (Practice and Procedure) at paragraph 1044 and following.  Harvey emphasises that, despite changes which have extended the tribunal’s power to make orders for costs considerably, the fundamental principle remains that costs are the exception rather than the rule and that costs do not automatically follow the event in employment tribunals (see McPherson v BNP Paribas (London Branch) [2004] EWCA Cave 169 at paragraph 2 and Barnsley Metropolitan Borough Council v Yerrakalva [2011] EWCA Civ 1255 at paragraph 7).  It is also relevant to note that the tribunal must apply a two stage test to an application for costs.  First of all, it must consider whether the relevant party’s behaviour falls within Rule 40(3).  Secondly, the tribunal must consider whether it is an appropriate case in which for it to exercise its discretion to make a costs order.  Harvey at paragraph 1064 indicates that “unreasonable conduct” includes conduct that is vexatious, abusive or disruptive.  The discretion of the tribunal is not fettered by any requirement to link the award causally to particular costs incurred as a result of specific conduct which has been identified as unreasonable.  In  Yerrakalva Lord Justice Mummery observed that:-

 

                        “The vital point in exercising discretion to order costs is to look at the whole picture of what happened in the case and to ask whether there has been unreasonable conduct by the claimant in bringing and conducting the case and, in doing so, to identify the conduct, what was unreasonable about it and what effect it had.”

 

40.      The case law also makes clear that the claimant’s means do not have to be taken into account in deciding whether or not to make a costs order: further, lack of means is not a bar to a costs order being made.  In Jilley v Birmingham and Solihull Mental Health Trust and Others [UKEAT/0584/06] paragraph 3 of the judgment notes:-

 

                        “The first question is whether to take the ability to pay into account.  The tribunal has absolutely no duty to do so.  As we have seen if it does not do so a County Court may do so at a later stage.  In any case it will be desirable to take means into account before making an order; ability to pay may affect the exercise of an overall discretion, and this of course will encourage finality and may avoid lengthy enforcement proceedings.  But there may be cases where for good reason ability to pay should not be taken into account; for example if a paying party has not attended or is given unsatisfactory evidence about means.”

 

41.      We are not satisfied that we have heard sufficient information or argument to satisfy us that the claimant acted in any way frivolously, vexatiously or otherwise unreasonably in pursuing the disability discrimination claim.  The respondent asserted that the claim was vexatious and misconceived from the outset, but no evidence of this was produced to us as indeed we did not hear the claim.  Accordingly we are not in a position to judge whether or not the claimant’s claim was indeed misconceived, frivolous or vexatious.  On the information which Ms Walker put before us, the claim was lodged to protect the claimant’s position in respect of time limits and she had taken some advice which suggested that the claimant had a viable claim.  The main factor in withdrawing the claim appears to have been that the claimant’s representative was concerned at her own inexperience and her ability to present the claim effectively together with a conversation she had with the respondent’s representative.  In our view this is not an appropriate basis on which for us to award costs against the claimant.  We take into account as well the fact that the claimant is currently in receipt of Job Seekers Allowance and advises that he had no other income.  While it is not essential for us to take account of the claimant’s means, we considered appropriate to do so in this case.  In light of his very modest income at this point we do not consider it appropriate to exercise our discretion to make an award of costs against him.

 

42.      In relation to the costs of the adjournment on 28 September, we note that this was largely occasioned when the respondent raised issues in relation to discoverable documentation which they said the claimant had not provided.  While it is correct that some of the information had not been provided by the claimant, the claimant was not at that stage in possession of the information and documentation sought, in spite of having sought it himself from the Social Security Agency.  While the respondent could very well have summonsed a witness from the Social Security Agency themselves had they arranged this in good time, they had not done so.  In order to facilitate the disposal of the matter, the tribunal of its own motion issued a witness summons to Mrs McCloskey from the Social Security Agency who attended on the next occasion the tribunal was sitting.  While her evidence was certainly relevant to the claimant’s dealings with the SSA and when he was fit (or not to return to work), it was not at the end of the day relevant to the core issues we had to decide.  Given the circumstances, and in fact that the adjournment was occasioned by the respondent seeking further information which it could itself have taken steps to obtain, we do not consider it appropriate to award costs in this matter either.  The same considerations in relation to the claimant’s means as set out above are also relevant in our view.  Accordingly the respondent’s application for costs is refused.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing:          28 and 30 September 2015 and

 1 October 2015, Belfast.

 

 

Date decision recorded in register and issued to parties: