Scottish Court of Session Decisions

FIRST DIVISION, INNER HOUSE, COURT OF SESSION
Lord President Lord Osborne Lord Wheatley	XA104/01 OPINION OF THE COURT delivered by THE LORD PRESIDENT in APPEAL TO THE COURT OF SESSION under the Employment Tribunals Act 1996, section 37(1) by SCOTTBRIDGE CONSTRUCTION LIMITED Appellants; against JAMES WRIGHT Respondent: _______

 

 

Act: Napier, Q.C.; Drummond Miller, W.S. (Winton Brown, Hamilton) (Appellants)

Alt: Dunlop; Digby Brown (Respondent)

25 October 2002

1. This appeal arises out of an application by the respondent to the employment tribunal in which he claimed that the terms of his employment with the appellants entitled him to the benefit of the application of the National Minimum Wage Regulations 1999. His claim was rejected by the employment tribunal, but sustained by the Employment Appeal Tribunal. The appellants have appealed to this court against the determination of the Employment Appeal Tribunal.
2. Before coming to the point at issue in this appeal it is convenient to set out the facts which were found by the employment tribunal. The appellants are construction contractors, engaged in general building work in civil engineering projects in the Glasgow area. The respondent was employed by them as a night watchman. He was required to attend their office premises at 5 p.m. each evening and to remain there until 7 a.m. the following morning. He was so employed by them between June and November 1999. In general his duties included maintaining security of the premises, admitting company employees to the premises when required, closing up afterwards, manning the telephones, and some small-scale cleaning tasks, including emptying the bins. These tasks were not onerous.
3. In the evening between 5 and 6 p.m. the respondent could have been fully engaged while the day shift were completing their tasks, and it is possible that he might have required to answer the telephone after that time. This was only an occasional requirement. He was not required to carry out any tasks on a regular basis from that time till around 11 p.m. when the night shift arrived to collect their vehicles and load them before proceeding to site. He was not involved in any tasks after midnight until 5 a.m., when the nightshift returned and unloaded. Very rarely was he required to open up the premises during this five hour period. As night watchman he was permitted to sleep when he was not required to carry out work. Within the office premises there was a television set, cooking equipment and a mattress for sleeping which was used by him for this purpose.
4. We should add that the employment tribunal observed that it would be a very rare occasion when sleep would not have been possible when the respondent was not required to work. It was clear to it from the evidence that he was only "required to be awake for the purpose of working" for four hours per night (and that was being generous to him). Outwith that time he was entitled to sleep and watch television, read or do whatever else he wished to do. There may have been occasions when his sleep was interrupted by a telephone call or by one of the workmen returning from site for additional material, "but, on the evidence, it seemed to us that these were so few and far between as to make no material difference to the situation".
5. The terms on which the respondent was employed were set out in a letter to him dated 7 June 1999 as follows:

"Dear Mr Wright,

Night Watchman

We refer to our telephone conversation with you today and confirm that we have offered you the above position to commence on Monday, 14th June 1999.

You will require to be in attendance at the undernoted premises between 1700 and 0700 seven days per week.

Your rate of pay will be £210 per week.

Annual leave will be four weeks by mutual arrangement.

We shall be obliged if you will kindly confirm in writing your acceptance, or otherwise, of this position.

Yours faithfully

For SCOTTBRIDGE CONSTRUCTION LIMITED

 

Donald McCallum

Managing Director"

6. The total number of hours of attendance according to the above letter was 98 hours per week. The question which was at issue between the parties was whether, for the purposes of the legislation relating to the national minimum wage, the remuneration of the respondent should be related to the total of 98 hours per week or to the number of hours when he was awake for the purpose of working. It is not in dispute that if the first alternative is correct, the respondent would be entitled to an additional sum per week, but, if the latter is correct, he would not be entitled to any further payment.
7. Under Regulation 14(1) of the National Minimum Wage Regulations 1999 the hourly rate paid to a worker is determined by reference to, inter alia, the number of hours of work, according to whether the work falls into the category of "time work", "salaried hours work", "output work" or "unmeasured work". It was common ground between the parties that in the present case the work of the respondent was "time work". According to Regulation 3 that expression has a number of meanings. The meaning which is relevant for present purposes is "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". Under Regulation 20 the "time work" worked by a worker in a pay reference period is the total number of hours of time work done by him in the pay reference period.
8. It is also necessary for us to refer to a further provisions in regard to "time work" which are made by Regulation 15. Paragraph (1) states:

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

9. The employment tribunal appears to have taken the view that Regulation 15(1) applied to the case of the respondent, and that on this basis the relevant period of time for the purposes of time work was the period of four hours when he required to be awake for the purpose of working. The Employment Appeal Tribunal, on the other hand, took the view that, on the footing that the work of the respondent was "time work", the essential requirement was that he was required to be on the premises for the whole 14 hour period. Unlike the employment tribunal, it regarded Regulation 15(1) as not applying where there was not a specific allocation of time during which a worker was permitted to sleep.
10. For the appellants Mr Napier submitted that Regulation 3 fell to be read along with Regulation 15(1). The exception set out in the latter provision should be understood, on one construction, as qualifying the time during which a worker would otherwise be regarded as working, so that during the hours when he was permitted to sleep he would be treated as engaged in "time work" only when he was awake for the purpose of working. If, on the other hand, the exception was regarded as referring to the time when the worker was available at or near his place of work, other than his home, for the purpose of doing time work, the same conclusion could be reached. The general intention was that when a worker was allowed to sleep, the period in which he was allowed to do so did not qualify as "time work" unless he was awake for the purpose of working.
11. In our view the argument for the appellants is not well-founded. The terms on which the respondent was engaged in the employment of the appellants, which we have quoted earlier, make it clear that in return for remuneration at the rate of £210 per week the respondent was required to attend at their premises between 5 p.m. and 7 a.m. seven days per week as a night watchman. The work which was paid for under his contract by reference to the time for which he worked was, for the purposes of Regulation 3, his attendance as a night watchman for the whole of those hours. The fact that the activities of a night watchman were not spelt out in the letter is neither here nor there. More importantly the fact that the respondent had little or nothing to do during certain hours when he was permitted to sleep does not take away from the fact that he was throughout in attendance as a night watchman and required at any time to answer the telephone or to deal with alarms. The employment tribunal, in our view, confused their estimate of the hours during which the respondent was generally active with an overall consideration of what was required of him as a night watchman at any time. Thus we do not accept as conclusive the decision of the employment tribunal as to the period which was relevant for the purposes of the national minimum wage. On the facts before it, the whole 14 hours period fell to be regarded as "time work" for the purposes of the Regulations.
12. The decision of the Court of Appeal in British Nursing Association v. Inland Revenue [2002] IRLR 480, to which we were referred at a late stage in the discussion, provides an interesting parallel with the present case. The Association provided "bank nurses" on an emergency basis. It advertised a 24 hour booking service. During the day this was operated from its own premises, but during the night time services were provided by employees who worked from home. During the night time the members of staff answered calls that were diverted to their home numbers and took action on the request by identifying and contacting the person who was actually to do the work. The members of staff were paid an amount per shift. Whether they were paid an amount which satisfied the requirements of the national minimum wage depended on the amount of time during the shift for which they were considered as actually working. At para. 12 Buxton L.J., with whom the other members of the court concurred, stated that it was not only open to the employment tribunal and the Employment Appeal Tribunal to find that the workers were working throughout their shift (as they had done), but also,

"as an issue of the ordinary use of the English language, it seems to me self-evident on these facts that they were indeed so working. No-one would say that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home. It was indeed as a continuation of the daytime service that the employer presented the night-time service to his employees and recruited them for that purpose".

We also agree with Buxton L.J. when he observed at para. 14 that "Regulation 15 only arises in a case where a worker is not in fact working, but is on call waiting to work". As he put it in para. 17:

"Regulation 15(1) relates to workers who are, in colloquial terms, 'on call'. When a worker falls into that category he has to be paid the minimum wage for his waiting hours, unless he is on call at home... However, if the worker is permitted to sleep when on call, the hours during which he is permitted to sleep and when he is not actually working do not count as the equivalent of time work...The exception that it contains, introduced by the words 'except that', is indeed an exception: that is, presupposes that the case is otherwise covered by the principal rule of the Regulation. That principal rule, as we have seen, is confined to cases where the worker is on call other than at his home. So where, as in our case, the workers are asleep at home, they are not covered by the exclusion because they are not in any event covered by the rule from which they appear to be excluded".

13. Similarly, in the present case the question of an extension to what otherwise would have been regarded as the scope of "time work" does not arise. Accordingly, as in the British Nursing Association case, Regulation 15(1) does not apply.
14. For these reasons we are of the opinion that the Employment Appeal Tribunal reached the correct conclusion in holding that the decision of the employment tribunal was ill-founded.