United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR FAIRLEY Advocate Messrs Allan McDougall & Co Solicitors 3 Coates Crescent Edinburgh EH3 7AL
For the Respondents	MR DUGGAN (Of Counsel Instructed by: Messrs Astons Solicitors The Stables Manor Road Staverton Nr Daventry Northamptonshire NN11 6JD


 


SUMMARY

The claimant was a Guest Care Manager in the employment of a hotel company who was required to "sleep-over" in the hotel several nights each week. The primary reason for him being required to do so was to cover emergencies, such as fire or flood. The Tribunal found that he was not at the respondents' disposal during periods of sleep-over, and was not entitled to be paid therefor unless he carried out any work. The Employment Appeal Tribunal reversed the decision of the Tribunal. It was plainly wrong to say that the claimant was not at the respondents' disposal during sleep-overs given that the respondents required him to be in their premises during those periods for a stated purpose. He was, clearly, working.


 


THE HONOURABLE LADY SMITH

Preliminaries

1. This case concerns the question of whether, in its particular circumstances, the claimant was entitled to be paid during sleep-over periods at his workplace. I will refer to parties as claimant and respondents.

Introduction

2. This is an appeal by the claimant against a judgment of the Employment Tribunal sitting at Edinburgh from a Chairman, Mr D L Stewart, sitting alone, registered with extended reasons on 9 July 2004. The claimant was represented there by Mr R Wilson, of the Transport and General Workers Union and before me by Mr Fairley, advocate. The respondents were represented there by Mr Ashton, Solicitor, and before me by Mr Duggan, of counsel.
3. The claimant's contract of employment was one which entitled him to be paid on an hourly rate basis. It was agreed between parties that he had not been paid for periods that he had been required to sleep-over in the respondents' hotel. The claim was, accordingly, a contractual one. In particular, his claim was not advanced as a claim under either the Working Time Regulations 1998 or the National Minimum Wage Regulations 1999. Not that that is to say that certain authorities in which those Regulations have been considered are of no assistance in the present case. That is something to which I shall return.
4. The respondents contended that payment was not entitled to any payment in respect of the sleep-over periods since, during those periods, he was not working.

The issues

5. In paragraph 27 of their extended reasons, the Employment Tribunal identified the only issue in the case as follows:

"The nub of the case accordingly was whether or not in the particular circumstances of this situation, the applicant is entitled to be paid during sleep overs. In other words was he working during that time."

The decision of the Tribunal

6. The Employment Tribunal decided that the time the claimant spent on sleep-overs was not working time. They appear to have reached that view on the basis of reasoning which began with taking account of the fact that the primary reason of the claimant's presence was to cover emergencies such as fire or flood. They then observed that such emergencies were very rare events. They then concluded that they should not regard the claimant as being at the respondents' disposal or as carrying out activities or duties during the sleep-over periods. They were, however, prepared to countenance the claimant being paid for what they refer to as "any work he did during sleep-overs" (see paragraph 31). Although not articulated as such, it seems that the Tribunal there had in mind the claimant being paid only if he could show that he had performed some specific activity during some specific part of the sleep-over period.
7. The Tribunal took account of the cases of Scottbridge Construction Ltd v Wright [2002] SLT 1356, Sindicato de Medicos de Asistencia Publica (SIMAP) v Constelleria De Sandidad Y Consumo De La Generalidad Valenciana [2000] IRLR 845, and Landeschauptstadt Kiel v Jaeger [2003] IRLR 804 but sought to distinguish them from the facts of the present case. The Tribunal do not, however, discuss the principles that can be extracted from that line of authority.

The Facts

8. The facts are in short compass. In November 2002, the claimant began working for the respondents as a night porter. On 11 April 2003, he ceased being a night porter and he became a general assistant with Guest Care Manager responsibilities. He remained in the employment of the respondents until 1 January 2004.
9. During the period of almost nine months that the claimant worked as Guest Care Manager at the Learmonth Hotel in Edinburgh, he was regularly required to sleep-over in the hotel. The reason for that requirement was primarily to deal with emergencies such as fire and flood. On one occasion, he was called out by the night porter to deal with rowdy guests. On November 20^th 2003, the claimant was disciplined for having left the hotel between 3.30am and 4.01am during one such sleep-over period. He was called to a disciplinary interview as a result and received a verbal warning. A sleep-over requirement was made of the claimant notwithstanding the fact that he lived only 10 or 15 minutes walk away from the hotel.
10. A night porter was on duty each night at the Learmonth Hotel. However, according to the evidence of Mr Kevin Logan, the respondents' acting General Manager, which appears to have been accepted by the Tribunal, it was necessary to have two of the respondents' employees in the hotel at night for health and safety and fire regulation reasons.

Submissions for the claimant

11. On behalf of the claimant, Mr Fairley submitted that it was clear on the evidence that the claimant was at work during sleep-overs. He referred to the findings that it was part of his duty, as Guest Care Manager, to do so, that he was required to remain in the respondents' hotel premises despite the fact that he lived only 10 to 15 minutes walk away from the hotel and that it was clear from what had happened to him as a result of his absence for just over half an hour on 20 November, that any absence during a sleep-over period would be regarded as a disciplinary matter. He also pointed to the evidence of Mr Stewart Walker, the General Manager of the Learmonth Hotel from August 2003 which, again, appears to have been accepted by the Tribunal, to the effect that the night porter ought to contact the Guest Care Manager sleeping over in the hotel if there was a flood, burst pipes, fire or an accident or someone was taken ill.
12. It was not disputed that the norm for the claimant would have been that he was asleep during these periods. However, his presence in the respondents' premises was not, it was submitted, a voluntary matter. It was clear that the respondents required to have someone, such as him, sleeping over in the hotel.
13. Mr Fairley referred to the above authorities. He also referred to cases of Dellas and Others v Premier Ministre and Another Case-14/04 (ECJ) [2006] IRLR 225 and Mrs E MacCartney v Oversley House Management UK EAT/0500/05, 31 January 2006. From these he sought to draw a number of principles:

Firstly, that the concept of "working time" is to be contrasted with "rest periods", the two being mutually exclusive.

Secondly, that neither the working time nor minimum wage regulations provided for there to be any intermediate category between working time and rest periods.

Thirdly, that under the Regulations, "on call" duty performed by a worker where he is required to be physically present on the employer's premises is regarded as "working time" regardless of whether or not any work is done during that on call duty period.

Fourthly, that the intensity of frequency of work done was not characteristic of whether or not the period was working time.

Fifthly, that the fact that "on call" activity includes periods of sleep or inactivity is irrelevant to the question of whether the period is working time or not.

Sixthly, that the fact that an on call worker has little or nothing to do does not mean that his time on duty (even if spent sleeping) is not working time.

Seventhly, that it is not necessary that an employee be in the front line of responsibility for time to be regarded as working time. In this respect, Mr Fairley had in mind the basis on which the Tribunal sought to distinguish the Scottbridge, SIMAP, and Landeshauptstadt cases on their facts: at paragraph 30 of her extended reasons, the Tribunal appeared to seek to distinguish between the applicants in those cases an the claimant in the present case by indicating that the former were "in the front line" whereas the claimant was "not responsible during the night for the hotel – that was the responsibility of the night porter". Finally, Mr Fairley submitted that none of the authorities indicated that where an employer requires an employee to be available to deal with emergencies, that requirement ought to be regarded as de minimis.

14. In all the circumstances, the Tribunal's conclusion that they did not regard the claimant as being at the respondents' disposal when sleeping over at the hotel was, it was submitted, perverse.

Submissions for the respondents

15. The essence of Mr Duggan's submission was that the Tribunal had decided, as a matter of fact, that the claimant was not at the respondents' disposal during sleep-over periods and that that was a finding which should not be interfered with. He relied on the case of MacCartney for a submission that if the likelihood of an employee being called out during an "on call" period was so insignificant as to be trifling, then that period could not be regarded as working time. He also drew attention to the facts that in the MacCartney case not only did the claimant require to be available but she was found to have performed various services during the on call periods. He founded heavily, as had the Tribunal, on the fact that emergencies were rare events.

Relevant legal principles

16. The claim in this case is a contractual one and it arises in the context of a contract of employment. That contract was one in which the claimant was entitled to be paid at an hourly rate for those hours that he was, in furtherance of his duties under the contract, working. That question is one of mixed fact and law.
17. In the Scottbridge case, the fact that the employer required the employee to be on his premises during the nightshift hours was regarded as a key factor and it did not matter that his actual period of activity amounted to a small proportion of the hours in attendance.
18. In the case of Landeshauptstadt, a case involving circumstances where on call doctors slept at their hospitals, the European Court of Justice found that the decisive factor in considering whether the time spent on call by doctors in a hospital was working time or not was that they were required to be present at the place determined by the employer and to be available to the employer in order to provide services immediately in case of need. The court drew a distinction between those circumstances and cases where a doctor required only to be contactable (paragraph 52). Further, they specifically comment (at paragraph 61) that "periods of professional inactivity are inherent in on call duty". That did not mean that the doctors were not to be regarded as working during such periods of inactivity. The circumstances were such as to require them to be in the hospital premises. The court relied on the earlier judgment in the SIMAP case. In particular, reference was made to paragraph 50 of that judgment where it is stated:

"…the situation is different where doctors in primary care teams are on call by being contactable at all times without having to be at the health centre. Even if they are at the disposal of their employer, in that it must be possible to contact them, in that situation doctors may manage their time with fewer constraints and pursue their own interests. In those circumstances, only time linked to the actual provision of primary care services must be regarded as working time within the meaning of the Directive 93/104."

19. The court also, in the SIMAP case commented that the characteristic features of working time are present in the case of time spent on call by doctors where their presence at the health centre was "required" (paragraph 48). The same view was expressed in the Dellas case where, at paragraph 46, the court said:

"In the first place, it is settled case law that on call duty performed by a worker where he is required to be physically present on the employer's premises must be regarded in its entirety as working time within the meaning of Directive 93/104, regardless of the work actually done by the person concerned during that on call duty."

20. I do not read the decision in the MacCartney as detracting in any way from the above principles, described in the Dellas case as settled law. Mr Duggan seemed to suggest that it was possible to extract a "stand alone" principle from the MacCartney case to the effect that if the likelihood of call out is so insignificant as to be trifling then the employee could not be regarded as working. I disagree. Firstly, the comment relied on, in paragraph 48 in the MacCartney decision, is clearly obiter. Secondly, and more importantly, it was not a comment made in the context of circumstances in which an employee is required to be physically present in the employer's premises, away from home.
21. What is also plain from a review of the authorities is that the employee can be regarded as working even although he is asleep and will be so regarded if the place that he is sleeping is his employer's premises and the reason he is sleeping there is that his employer requires him to be in those premises for the employer's purposes. In those circumstances the employee cannot properly be regarded as enjoying a rest period, that being a concept which, properly interpreted, involves a break from being subject to employer requirement during which the employee is able to lead his normal life. Questions can, of course, arise as to whether the ability of an employer to interrupt such a break period and recall his employee from that state of freedom is such as to render the entire period working time. Mr Fairley, in the course of his submissions, referred to such circumstances as "grey area" cases and that is probably a fair characterisation. The present case does not, however, fall into that category.

Discussion

22. The Tribunal's reasoning was as follows:

"30. The factual circumstances in Scottbridge Construction (a claim under the National Minimum Wage Regulations) and Sindicato de Medicos were distinguishable. In those cases, the applicant during the night was directly responsible for the plant in the case of Scottbridge, and for patients in the case of Sindicato. They were in the front line. In the instant case the applicant was not responsible during the night for the hotel – that was the responsibility of the night porter who was paid for working all night in the same way as the doctors in Sindicato and Landeschauptstadt Kiel v Jaeger (ECJ 151/02) who were on call all night while resident in the hospital and who were paid for all times spent on call.

31. The issue was a narrow one but in all the circumstances the Tribunal was of the view that the time the applicant spent on sleep overs was not working time. His duties were to cover emergencies such as fire or flood. These were very rare events and the applicant's evidence was that on one occasion the fire alarm had been activated and the hotel evacuated. In these circumstances the Tribunal did not regard the applicant as being at the employer's disposal and carrying out his activities or duties during the sleep overs. He would however be entitled to be paid for any work he did during the sleep overs. In his evidence-in-chief he indicated that he had been called up about three times a month, but the evidence disclosed that dealing with a computer problem or check ins or outs at night was not part of his duties. If the Tribunal had found that the applicant was entitled to be paid for sleep overs they would have awarded the applicant two-thirds of the sum claimed (£2,376.00) which was based on an 8 hour period on the basis that it was common ground that the applicant had been paid for working late on the late shift and for starting early on the morning shift on sleep over occasions. The applicant is entitled to £276 (£78.60 + £44.20 (split shifts) + £161.20 (antisocial hours payment))."

Dealing firstly with the Tribunal's reliance on authority, they appear to have sought to distinguish the authorities referred to on the basis that the applicants in those cases were "in the front line". I doubt whether that is, in fact, an accurate characterisation of the responsibilities of the applicants in those cases. The applicant in Scottbridge was a night watchman who was allowed to sleep for the much of the time that he was on duty and the applicants in Sindicato, were doctors who were, similarly, allowed to sleep in the hospital whilst they were not required to attend to patients. However, more importantly, no principle can be deduced from the line of authority to which I have referred to the effect that if an employee is not in the "front line" then he cannot be regarded as working. Unfortunately, the Tribunal appear to have given no consideration to the principles which can be deduced from those authorities to which I have already referred. In particular, no consideration has been given to the significance attributed to the fact that an employee is required to be physically present on his employer's premises or to the conclusion that emerges from a consideration of the authorities to the effect that the fact that an employee was allowed to sleep during an on call period is irrelevant in circumstances where the place where he is required to sleep his employer's premises so as to be available if required, for his employer's purposes.

23. In the present case, the claimant was clearly subject to employer requirement throughout the sleep-over periods. The reason that he slept over in the hotel was that the respondents were under an obligation to have at least two employees present there overnight for health and safety and fire regulation purposes. The requirement that the claimant remain in the respondents' hotel premises during sleep-over periods was of such significance that he was liable to and indeed had been disciplined in the event of his leaving the hotel at any time during such a period. That was in circumstances where the claimant's own home was not far away. It was, however, clearly not sufficient for the respondents' purposes that the claimant be at home and on call. He had to be in the hotel. The fact that he was there met a need of the respondents. He met that need throughout each sleep-over period. Being present in the premises was, primarily, what he was employed to do during sleep-over periods. That was, accordingly, his "work". I am readily satisfied that the Tribunal were in error in taking the view, as they did, that he could only be regarded as working if he was carrying out some specific activity during a sleep-over period. That approach simply misses the point.

Disposal

24. Mr Fairley submitted that in the event the appeal was allowed, there was no need to remit the case back to the Tribunal. They had, he submitted, made sufficient findings for the correct award to be made by this Tribunal. I agree. As is evident from the figures set out in paragraph 31 of the Tribunal's reasons, had they been persuaded that the claimant was working during the sleep-over periods, they would have awarded him two-thirds of £2,376, which is the sum of £1,584. I will, accordingly, pronounce an order making an award in favour of the claimant of that sum in addition to the sum to which the Tribunal have already found the claimant entitled.