United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR SIMON GORTON (of Counsel) Instructed by: Messrs SAS Daniels LLP Solicitors 30 Greek Street Stockport Cheshire SK3 8AD
For the Respondents	MR KEVIN McNERNEY (of Counsel) Instructed by: Messrs Laytons Solicitors 22 St John Street Manchester M3 4EB


 


SUMMARY

NATIONAL MINIMUM WAGE

The Appellant employed the Respondents as respectively deputy housekeeper and housekeeper at the Appellant's sheltered accommodation. The housekeeper worked 37.5 hours per week (08.30 to 14.00 and 16.00 to 18.00 Monday to Thursday) but she was required to be on call in the flat provided to her from 21.00 to 08.00 each day she worked. The deputy housekeeper worked 08.30 to 14.00 and 16.00 to 18.00 on Friday and Saturday but was required to be on (with a room provided for her) from 21.00 Thursday to 08.30 Friday and 21.00 Friday to 08.30 Saturday. They claimed that the hours they were on call were hours during which they were "at work" and so they were entitled to be paid for those on call hours at least at the rate of the national minimum wage. The ET so held. Its award to the Second respondent was "£25,000 net." On appeal it was held that by virtue of Reg 15(1A) of the National Minimum Wage Regulations they were only entitled to be paid for those on call hours when they were awake for the purpose of working. In any event the ET did not have jurisdiction to make an award of "£25,000 net" ie £25,000 plus tax and NI contributions. Its total jurisdiction was limited to £25,000.


 


HIS HONOUR JUDGE REID QC

Preliminary

1. This is an appeal from a decision of an Employment Tribunal held at Manchester on 24, 25 June and 5 and 6 October 2009. The Tribunal considered the matter in chambers on 7 October 2009 and its reserved judgment and reasons were sent to the parties on 18 November 2009.
2. By its decision the Tribunal held that the Appellant had breached the Respondents' contracts of employment by failing to pay them the national minimum wage and ordered that Mrs Woodworth be paid "£25,000 net" as being the limit of its jurisdiction and Mrs Hopkins a sum of damages to be agreed or fixed at a remedies hearing.
3. The reason that the judgment was framed in these terms was that the Respondents had originally lodged their claims with the Employment Tribunal on 17 July 2007 as deductions of wages claims under Part II of the Employment Rights Act 1996 on the basis of failure to pay the national minimum wage in breach of the 1998 Act. The claims were then notionally amended (no amendment was ever reduced to writing) to include a claim for breach of contract under the Employment Tribunals (Extension of Jurisdiction Order). At a pre-hearing review on 6 January 2009 the Tribunal held that the claims under the Employment Rights Act was out of time as the claims had crystallised in October 2007 and proceedings had not been issued until July 2008. The breach of contract claims were, however, presented within the limitation period and so were allowed to proceed.
4. At that stage Mrs Woodworth put her claim at £83,482.65 and Ms Hopkins put hers at £6,832.54.

Facts

5. Mrs Woodworth was employed as a housekeeper at Abbeyfield House, Gatley from 16 February 2001 until her redundancy on 25 July 2008. Her ordinary working hours were 08.30 to 14.00 and 16.00 to 18.00 Saturday to Thursday each week. In addition to her salary Mrs Woodworth was provided with a fully serviced flat and her food. During her working week Mrs Woodworth was required to be on call overnight from 21.00 to 09.00.
6. Mrs Hopkins was employed as a deputy housekeeper from 29 June 2006 until her redundancy on 25 July 2008. She covered Mrs Woodworth's absences through rest, holiday or illness. She was provided with accommodation (her own room) and food but not living quarters. Her basic hours were 16 per week (2x8 hour shifts, 08.00 to 14.00 and 16.00 to 18.00pm.). She was required to attend the Appellant's premises Thursday evening from 9pm on call but commenced her first shift on Friday at 08.00. She would stay overnight Friday on call and commenced her second shift at 08.00 on Saturday. She was required to be on call (overnight only) outside her core hours from 21.00 Thursday to 08.00 Saturday.
7. Both Claimants were subject to variation in the terms of their employment, effective from 11 October 2007, whereby they were no longer required to be on call overnight.
8. There was a dispute of fact which was not resolved by the Employment Tribunal as to the extent to which Mrs Woodworth and Mrs Hopkins were in fact called out. In the course of investigating grievances raised by the Claimants in July 2007 about their entitlement to be paid for "sleep in" Mrs Woodworth told Mr Baker (who was investigating the grievance) that she was called out about twice a year and Mrs Hopkins told him that she had been called out only once since her employment began. In the Employment Tribunal Mrs Woodworth stated she was called out once a night on four nights out of five and Mrs Hopkins asserted she was "disturbed at night on four or five occasions each night." The Tribunal merely stated it was not necessary to make a finding as to the frequency of call-outs but it was satisfied that "they were above the threshold described in the case of McCartney [ie McCartney v Oversley House Management [2006] ICR 510 in which at para 48 the EAT stated that time spent on calls should not be paid because the call-out was so insignificant as to be trifling.]

Employment Tribunal findings

9. The Employment Tribunal concluded that Mrs Woodworth and Mrs Hopkins were "required to be on the [Appellant's] premises during the night shift, and all of that time, whether they were asleep or not counts for the purposes of the Working Time Regulations. It follows that the Working Time Regulations are engaged and the Claimants are entitled to back-pay for the time when they were at work over the night shift." The Tribunal went on to award Mrs Woodworth "£25,000 net" and to leave the exact amount due to Mrs Hopkins for agreement or further argument.

The legislative provisions

10. Section 1 of the 1998 Act provides that "A person who qualifies for the national minimum wage" shall be paid a rate which is not less than the stipulated minimum wage. It is common ground that the Claimants qualify. Regulations made pursuant to section 2 of the Act make provision for determining the hourly rate of remuneration in any pay period. These are the National Minimum Wage Regulations 1999 ("NMWR"). The Regulations define different categories of work. It is accepted that Mrs Hopkins falls within the category of someone doing "time work" as defined in reg 3. This means in this context that she is paid by reference to the time for which she works, since she is not salaried. Mrs Woodworth is in the category of someone doing "salaried hours" work as defined in reg 4 and so is entitled to be paid a fixed salary for an ascertainable number of basis hours whether or not that number of hours is actually worked.
11. The Regulations also lay down the procedure for determining whether the minimum wage is paid or not. Broadly that involves looking at the total remuneration in the relevant pay reference period and dividing by the hours worked (see reg 14). In so far as there is a shortfall, it must be made good. The relevant part of s17(1) of the NMWA provides the mechanism: "If a worker who qualifies for the national minimum wage is remunerated for any pay reference period by his employer at a rate which is less than the national minimum wage, the worker shall at any time ("the time of determination") be taken to be entitled under his contract to be paid, as additional remuneration in respect of the period whichever is the higher of [two amounts]….."
12. Regs 15(1) and (1A) of the NMWR provide. "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."
13. Regs 16(1) and (1A) dealing with salaried hours work are, mutatis mutandis, in the same terms.

Authorities

14. Counsel referred to the following authorities in the course of their submissions: SIMAP v Conselleria de Sanidad and anor [2001] ICR 1116 (ECJ); British Nursing Association v Inland Revenue [2002] EWCA Civ 994; Scottridge Construction Ltd v Wright [2003] IRLR 21; Landeshauptstadt Kiel v Jaeger [2004] ICR 1528 (ECJ); MacCartney v Oversley House Management [2006] ICR 510; Anderson v Jarvis Hotels plc UKEATS/0062/05/RN; Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172; Hughes v Graylyns Residential Home UKEAT/0159/08/MAA; and Smith v Oxfordshire Learning Disability NHS Trust [2009] ICR 1395. Walton v Independent Living Organisation [2003] EWCA Civ 199 was also included in the bundle of authorities but neither side felt it necessary to refer to it.

The Appellant's case

15. The Appellant argued that neither claim for breach of contract was brought under the Working Time Regulations 1998 ("WTR") and neither Claimant pleaded reliance on those regulations. The claim was brought as a breach of contract claim brought under the National Minimum Wages Act 1998 ("NMWA") and the National Minimum Wage Regulations 1999 ("NMWR") and neither Claimant could rely on the WTR for a claim based on the minimum wage. While under WTR in accordance with the decisions in SIMAP and Landeshauptstadt Kiel v Jaeger on call time which requires a worker to be present at the place of work, and at times sleeping, is working time for the purposes of the Working Time Directive and the WTR. That did not determine the claims. What was determinative was whether the on-call time spent by both Claimants was (a) simply time work or salary hours work not falling within reg 15 or 16 of the NMWR, or (b) if the work so fell within the applicable regulation, to what extent i.e. what was the time the worker was awake for the purposes of working and therefore entitled to be paid no less than the statutory minimum.
16. Regs 15(1) and 16(1), it was submitted, deal with workers required to be available at or near the place of work, for work but not actually working i.e. on-call. The regulations deems such work (for the duration of the requirement) to be time work or salaried hours work, as the case may be, and so must be remunerated to at least the minimum wage. However, reg 15(1) is subject to (1A), and reg 16(1) to reg 16(1A). These relax the application of the deeming provisions when there is an arrangement for the worker to sleep at or near the place of work and who is provided with suitable sleeping facilities. Such a situation is then taken out of the deeming provision except when the worker is awake for the purpose of working in which case it is then deemed to be time work.
17. The actual or core working hours for the Claimants were set out in their contracts and remunerated in accordance with the NMWA. The claims concern on-call work, that is work that is above and beyond the core hours that make up the individual's job and for which the individual was paid. That additional on-call, non-core, time attracts the provisions of reg 15(1A) and 16(1A). If there is an arrangement for sleeping at or near the place of work with suitable facilities for sleeping, then the reg 15(1) deeming provision only applies when the worker is "awake for the purposes of working" - that is the reg 15(1A) and 16(1A) exceptions to the deeming provision. In the present case the Tribunal had wrongly failed to apply the exceptions.
18. So far as the award of "£25,000 net" was concerned, the Tribunal rightly accepted the award as subject to deductions for tax and national insurance. Its jurisdiction was capped at £25,000 and an award of £25,000 net was in reality a gross award in excess of its jurisdiction.
19. The Appellant also submitted that the decision was so laconic and short of reasoning in its crucial passages that it was not "Meek compliant".

The Respondent's case

20. The Respondents argued it was open to the Tribunal to decide that the shift work did qualify as "working time" under the WTR as an aid to deciding whether they were at work for the purposes of the NMWA. The Tribunal was entitled to find that they were working. It reviewed the evidence and decided that the time involved in working during the on call periods was sufficient to cross the relevant threshold so that they should be considered at work throughout the on-call periods. The Tribunal was entitled to say that the Respondents were working rather than available for work during the on-call hours and so was correct in its conclusion.
21. So far as the award of £25,000 net was concerned, the Tribunal assumed that any assessment of tax to be deducted from the award would still leave an amount due in excess of £25,000 and so was entitled to award the full £25,000.
22. So far as the adequacy of the reasoning was concerned, it might have been expressed briefly but the Appellant could see clearly why it had lost.

Discussion

23. The Respondents relied heavily on the British Nursing case. That case was decided before the amendment of Reg 15 but as Elias P noted in the Burrow Down case the new regulation was not materially different from the old. In our view that case is clearly distinguishable. There the workers were employed to answer the telephone, to assign bank nurses and, to a limited extent, to give advice. It was a 24-hour service. During the extended day, this service was provided from offices around the country. During the night, broadly from 8 pm to 9 am, it was from the homes of the workers. It was a seamless service. In other words, the client did not know the location of the person who is answering the telephone. The Court of Appeal therefore found that the workers are 'working' through the nightshift answering the clients' telephone calls and there was no difference between the day workers and the night workers, except that the night workers work from home. They were working just as much when they were at home waiting for the phone to ring as they were when they were in the office waiting for the phone to ring.
24. Accordingly the Court of Appeal did not regard reg 15 as being involved in that appeal in any event. As Buxton LJ said at para 14:

"......But regulation 15 only arises in a case where a worker is not in fact working, but is on call waiting to work. In this case, as we have seen, the tribunal found as a fact that the workers were working throughout the period of their shift. Regulation 15 is therefore irrelevant to these facts; and, moreover, even if that were not the case, it is in my judgment impossible to construe out of regulation 15 a rule applying to the whole of these Regulations, that obliged a tribunal to make a different finding in respect of the nature of a person's activities with regard to work just because they were being carried on at the employee's place of residence."

25. At paragraph 17 he went on:

"Regulation 15 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."

26. In Scottbridge Construction Mr Wright was a nightwatchman. As the Lord President said at para 11:

"The terms on which [he] 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 pm and 7 am seven days per week as a nightwatchman. The work which was paid for under his contract by reference to the time for which he worked was, for the purposes of reg. 3, his attendance as a nightwatchman for the whole of those hours. The fact that the activities of a nightwatchman 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 nightwatchman 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 nightwatchman at any time."

27. The Lord President went on expressly to agree with what Buxton LJ had said at para 17 of his judgment in the British Nursing case. Again this was a case where a substantial part of the employee's "work" amounted to "being there".
28. In MacCartney v Oversley House Management the Appellant was employed as a resident manager at a salary of £8,750 with a rent-free apartment in which she had her office. Her hours were defined as "Hours: four days per week of 24 hours site cover." She was able to do most of her duties between 08.00 and 18.00 and arrange most of them to suit her own convenience, but she was on call 24 hours a day. In that case Judge Richardson said at paras 47 and 48:

"47 In our judgment, when the principles laid down in SIMAP [2001] ICR 1116 and Jaeger [2004] ICR 1528 are applied to the circumstances of the claimant, they lead to the conclusion that the whole period when she was on call constituted working time. She was required to remain at or within a very short distance of her home, which was located within her place of work and contained her office. She was never off duty. She was always liable to answer calls directly from residents. She had to remain available at the place determined by her employers with a view to performing services if need be or when requested to intervene.

48 In the claimant's case, the likelihood of her being telephoned and called out was very substantially less than the likelihood of a doctor being called out while at rest in a hospital. But (unless the likelihood of call out is so insignificant as to be trifling) we do not think the extent to which the worker is likely to be called out (which might fluctuate from time to time) can be decisive of the question whether he or she is working. Nor would it be satisfactory to ask whether the accommodation provided by the employer was intended to be, or might constitute, the worker's home. If this were the key question, it would be productive of much litigation, for many workers have accommodation which goes with their job, but maintain another home of their own. In our judgment, the essential conclusion of the Court of Justice in Jaeger is to be found in para 69 of the judgment."

29. At para 64 he said:

"In our judgment, the claimant undertook "salaried hours work" within the meaning of regulation 4 of the 1999 Regulations. Her salary was expressed to be £8,750 in respect of "four days per week of 24-hour on site cover". This, in our judgment, was a contract to do salaried hours work: see regulation 4(1)(a) and (2). The claimant was entitled to be paid for an ascertainable basic number of hours in a year: regulation 4(2)(a). She was entitled to be paid an annual salary regardless of the hours actually worked in any particular week or month: regulation 4(2)(b). She had, in respect of those hours, no entitlement to any payment other than annual salary: regulation 4(2)(c). Moreover the work which she did under that contract was work in respect of which she was not entitled to payment in addition to annual salary: see regulation 4(6). For the reasons we have given, the claimant was at work throughout the period when she was providing on site cover, so regulation 15(1) does not arise: see British Nursing Association v Inland Revenue [2003] ICR 19, 24."

30. In our judgment the essential difference between that case and the present is that in that case Ms MacCartney's contract provided for her to work four days a week for 24-hour on site cover. She was at work throughout that period. That is a marked distinction from the present case in which Mrs Woodworth and Mrs Hopkins were required to work respectively 37.5 hours and 16 hours per week but to be on call at night outside those hours. They could not, in our view be said to be at work throughout the period when they were on call.
31. In Anderson the facts were that in November 2002 the claimant began working for the respondents as a night porter. On 11 April 2003 he became a general assistant with Guest Care Manager responsibilities at the Learmonth Hotel in Edinburgh where he remained until 1 January 2004. During the period that he worked as Guest Care Manager, 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 20 November 20 2003 he was disciplined for having left the hotel between 3.30am and 4.01am during one such sleep-over period and received a verbal warning. A sleep-over requirement was made notwithstanding the fact that he lived only 10 or 15 minutes walk away from the hotel. According to evidence 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.
32. In her judgment at para 23 the Hon Lady Smith gave her conclusions in these terms:

"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."

33. Again, in our judgment the distinction between that case and the present is that Mr Anderson could properly be said to be at work throughout the periods of his sleepovers. There was a regulatory requirement on the employer to have two members of staff present and his work, the purpose for which he was employed, during the sleepovers was to be a person present on the premises.
34. In Burrow Down the claimant, a night sleeper in a care home, attended work from 10 pm to 8 am two nights a week during which he was permitted to sleep, subject to securing the safety of the premises and attending to emergencies. He was paid on the basis of "time work", as defined by reg 3 of the National Minimum Wage Regulations 1999, and received a basic sum for being present during the night and a separate payment for time when he was awake and working. An employment tribunal upheld his claim that he should have been paid the national minimum wage for each hour of the shift, rejecting the employers' contention that, by virtue of reg 15(1A) of the 1999 Regulations, they were only obliged to pay him the national minimum wage for the time he was actually required to be awake to attend to his duties. The EAT (Elias P) rejected the appellant's primary argument that the amendment of reg 15 had fundamentally changed the law and then held that that, since he was required to undertake tasks during the time when otherwise he was permitted to be asleep, he was actually working, and thereby engaged in "time work", for the whole period of his shift; and that, accordingly, regulation 15 had no application and the claimant was entitled to be paid the minimum wage for each hour of the shift: "The claimant was at work for the whole of the shift, essentially for the reasons given in the Scottbridge Construction case. Like the claimant in that case, even during the time when he was permitted to be asleep, he was still required to deal with anything untoward that might arise in the course of his shift. It was not a case where he was deemed to be at work although only available to work. So neither regulation 15(1) nor regulation 15(1A) were ever engaged. In our judgment, the tribunal was right to say that Scottbridge was indistinguishable and should be followed."
35. In our judgment the difference between that case and the present is that in Burrow Down the employee had no "core hours" other than the two eight hour shifts he was required to be on site. Once it accepted that the amount he received for his presence was not an attendance allowance over and above his wages, it was clear that he was "working" throughout his shifts whether or not in fact asleep.
36. Hughes v Graylyns Residential Homes, a case decided on written submissions, Ms Hughes claimed she had been underpaid under the NMWR and also that she was entitled to compensation because of her employers' breach of the WTR. She was employed as a part time care assistant for 8 hours per week at £5.05 per hour. In addition she was obliged to be on call from 9pm to 8am seven days a week. A flat at The Graylyns was let to her at a rent subsidised to the tune of £150 per month because of her obligation to be on call. It was common ground she was engaged on salaried hours. The EAT (Judge McMullen QC presiding) held she was entitled to the benefit of the WTR in respect of 85 hours per week (ie 8 hours as a part time care assistant and 77 hours on call). By virtue of Reg 16(1A) she was entitled to be paid the national minimum wage "for all those hours save those under Reg 16(1A) when [she] is sleeping." The case was remitted to the same Employment Tribunal to determine "the quantification and remedy". In our judgment this case bears a striking similarity to the present.
37. In Smith v Oxfordshire Learning Disability NHS Trust (EAT, Underhill P presiding) the Claimant was paid a salary for his part time work. He was also paid an "enhancement" when he was required to participate in a sleep in roster. This sleep in payment was fixed at £25 per night (the equivalent of £2.70 per hour). In addition the Claimant was entitled to be paid at "the appropriate enhancement rate" for any disturbed nights (i.e. nights where the staff were awake for one hour or more and to time off in lieu – or payment instead if that was not possible - in addition). In fact the Claimant never had a "disturbed night". He claimed that in calculating whether he had been paid less than the NMW the hours spent on sleep in should be included in the calculation but the amount of the sleep in payment should be excluded. If the sleep in payment was included, his hourly rate was above the NMW: if it was excluded, it was not. The Trust conceded that all hours spent on sleep in were hours when he was working. The EAT with what appears to be some puzzlement at the concession did not seek to question it. But the EAT then went on to hold the sleep in payment should be taken into account and the claim therefore failed. It does not seem to us that this case (where the relevant point was the subject of a concession) assists.
38. We take the view that for NMW purposes the cases show a clear dichotomy between those cases where an employee is working merely by being present at the employer's premises (e.g. a nightwatchman) 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 call the WTR into issue to assert all the hours on call are working hours within the WTR, a breach of those regulations and a claim for compensation arising from the breach. However in the latter class of case the employee cannot bring into account all the hours spent on call for the purposes on a NMW claim. He can only do so (because of the terms of NMWR regs 15(1A) and 16(1A)) for such hours as he is awake for the purpose of working. In this case, of course, there is no claim under the WTR, only the contractual claim under the NMW.
39. In the present case the relevant reasoning given by the Employment Tribunal is laconic (about a third of the decision is given over to criticism of the National Minimum Wages Inspectorate which both sides rightly agreed was irrelevant) but it is quite possible to see why the Tribunal decided as it did. It is also possible, in our view, to see that the Tribunal erred in its view of the applicable law. In these circumstances the case must be remitted to the Employment Tribunal to determine what on call hours Mrs Woodworth and Mrs Hopkins spent awake for the purposes of working and to determine whether in the light of that finding any further payment is due under the NMWA.
40. In the light of this conclusion it is unnecessary to determine whether or not the Tribunal exceeded its jurisdiction in awarding Mrs Woodworth "£25,000 net", but in our view it did. Its jurisdiction under the Extension of Jurisdiction Regulations is up to £25,000. The Tribunal cannot increase its jurisdiction to take effect of what it perceives will be fiscal effect of the award.

Conclusion

41. The judgment of the Employment Tribunal will be set aside and the case will be remitted to a fresh tribunal. In doing so, we follow the guidance given by Lady Justice Smith in Taylor v OCS Group [2006] IRLR 613, CA. Where, as here, the Tribunal has expressed clear views and where it has found itself unable to determine relevant issues of fact, it would be too much to expect the same panel to reconsider its conclusions with an open mind. In order to ensure that justice is seen to be done the case should be reconsidered by a differently constituted panel.