United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0014/12/ZT

UKEAT/0015/12/ZT

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON, EC4Y 8JX

At the Tribunal

On 11 May 2012

Before

HIS HONOUR JUDGE DAVID RICHARDSON

(SITTING ALONE)

MS G CARTER   APPELLANT

PRESTIGE NURSING LTD RESPONDENT

PRESTIGE NURSING LTD APPELLANT

MS G CARTER RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

SUMMARY

WORKING TIME REGULATIONS

UNLAWFUL DEDUCTION FROM WAGES

Daily rest and weekly rest periods – not alleged by Claimant that there had been any attempt to exercise the rights which the Respondent had refused – appeal allowed and award set aside – Miles v Linkage Community Trust [2008] IRLR 602 followed.

Unlawful deduction from wages – no satisfactory finding as to terms of contract – appeal allowed and case remitted.

HIS HONOUR JUDGE DAVID RICHARDSON

1.            These appeals concern two aspects of a judgment of the Employment Tribunal in Bristol (Employment Judge Christensen sitting alone) dated 15 August 2011.  She was adjudicating on claims brought by Ms Georgina Carter, a nurse, against Prestige Nursing Limited (“Prestige”).

2.            By her judgment the Employment Judge upheld a claim that Ms Carter had been refused daily rest and weekly rest periods in accordance with regs.10 and 11 of the Working Time Regulations 1998 (“the WTR”) and awarded her compensation of £3500.  Against that conclusion Prestige appeals on the narrow ground that there had been no refusal to permit her to take those breaks: see reg. 30(1) of the WTR.

3.            The Employment Judge rejected a claim by Ms Carter under section 23 of the Employment Rights Act 1996 (“the ERA”) that there had been unlawful deductions from her wages in respect of hours which she worked at night.  Against that conclusion Ms Carter appeals, arguing that she was entitled by her contract to be paid at night effectively the rate which she was paid during the daytime.

4.            I will first set out the background facts and then deal separately with the issues raised by the two appeals.

5.            Prestige is a nationwide care organisation with an annual turnover of £20 million. A small part (10-15%) of its business is concerned with the provision of homecare services by the provision of live-in carers.  Ms Carter was such a carer.

6.            The arrangement under which Ms Carter worked was as follows.  She would live with the service user for two weeks and then have a week off, returning to her own home.  While she was living with the service user she would look after the service user and provide a degree of companionship.  From 6am until 10pm she was expected to be awake, remaining in the service user’s home, and available to meet the service user’s needs.  There was, however, a break from 12pm until 3pm when a relief carer came in: during that time Ms Carter was free to leave and do as she wished.

7.            From 10pm until 6am Ms Carter was required to be at the service user’s home, but could be asleep in her own room. The package under which she worked was for service users whose night-time needs were not expected to be significant – there was a different package called “working night care” for service users who needed 24 hour attention.  But Ms Carter was expected to be available if she was needed; and the service user had a bell to summon Ms Carter from her own room.

8.            When Ms Carter began to work for Prestige in 2003 she signed an agreement entitled “Conditions of Membership”.  This agreement referred to her as a “member”.  She was described in the Conditions as a “temporary worker” and as self employed.  It is common ground that she was and is a worker for the purposes of the ERA and the WTR.

9.            The Conditions of Membership contained provisions relating to “fees”, predicated on the basis that (1) the member had a contract with the service user under which the member was entitled to fees, (2) Prestige was the member’s agent entitled to collect the fees and deduct commission, (3) Prestige would pay weekly “advances” to the member.  It was however common ground at the Tribunal hearing that the service user’s contract was with Prestige, not with Ms Carter, and that Prestige was contractually responsible to Ms Carter for paying her.

10.         The Employment Judge said that payment was made to Ms Carter “according to the appropriate hourly rate”.  She made some findings about these rates during the period over which Ms Carter sought to claim – from May 2007 until December 2010.

11.         Throughout this period there was a day-time rate.  The rate was payable for all the hours between 6am and 10pm except the 3 hours from 12pm to 3pm when she was off duty.

12.         For part of the time – from May 2007 until September 2008 – there was a night time rate.  This rate was £1.25 per hour from 5 May 2007 until 30 September 2007; then £2.01 per hour from 1 October 2007 until 30 September 2008.  At this point the night time rate ceased – but there was an increase in the daytime rate from £5.52 to £6.50, which Prestige told Ms Carter was to compensate her for the cessation of the night time rate.  After 30 September 2008, therefore, the night time rate ceased.

13.         On 8 February 2011 Ms Carter’s present solicitors wrote a letter before action on her behalf.  They complained that she ought to have been paid “at her normal hourly rate” for the night time hours.  They did not at that stage complain about rest breaks.  On 18 February Prestige replied as follows: –

14.         When Ms Carter’s claim was issued it included a claim that the Claimant “received insufficient daily rest or weekly rest breaks” in contravention of reg.s 10 and 11 of the WTR.  In response Prestige denied any breach of these regulations and relied on reg. 18 of the WTR.

15.         The WTR were enacted to give effect to obligations under European Law.  Those obligations are now found in the Working Time Directive 2003/88/EC (“the WTD”).  The provisions in regs.10 and 11 of the WTR, giving rights to daily rest and weekly rest periods, derive from predecessors to articles 3 and 5 of the WTD, which required States to “take the measures necessary” to ensure these rights.

16.         The WTR make provision for three means of enforcement.  Firstly, duties of enforcement are placed on a number of statutory bodies: reg. 28.  Non-compliance with the requirements of inspectors appointed by these bodies is a serious criminal offence: see reg. 29.  Secondly, an employer who “fails to comply” with certain requirements of the WTR is liable to prosecution and (on indictment) an unlimited fine: reg. 29(1) and (3).  Thirdly, a worker may bring a complaint under reg. 30(1), as Ms Carter has done in this case.

17.         Although the first two means of enforcement cover many aspects of the WTR, in particular relating to hours of work, they do not appear to relate to the entitlements to daily rest, weekly rest and rest breaks.  This is because the duties of enforcement authorities, and the criminal sanctions under reg. 29(1), are limited to “the relevant requirements” of the WTR.  These, as defined in reg. 28(1), do not include regs. 10, 11 and 12.  The remedy under the WTR in relation to rest periods and rest breaks therefore appears to be that which is contained in reg. 30.

18.         In this appeal Prestige does not challenge the Employment Judge’s conclusion that Ms Carter had not received her entitlements under regs. 10 and 11. Mr Rees (who did not appear below) argues that the Employment Tribunal was not entitled to make an award because Prestige did not refuse to permit Ms Carter to exercise her rights under regs. 10 and 11. 

19.         This is a reference to reg. 30 of the WTR, which so far as relevant provides:

20.         He submits that Ms Carter neither alleged in her claim form nor adduced any evidence that she ever sought to exercise the rights to daily and weekly rest periods; there was no basis for finding a refusal by Prestige; and (except in her judgment) there was no finding by the Employment Judge of any refusal.

21.         Mr Rees places particular reliance on the decision of the Appeal Tribunal in Miles v Linkage Community Trust [2008] IRLR 602 (“Miles”).  In that case an employee succeeded in a claim under the WTR relating to rest breaks.  The Tribunal found that his right to make a claim under reg. 30 started with effect from the date when he lodged a grievance about rest breaks which was rejected.  On appeal it was argued for the employee that his right began with the (much earlier) date of default, which was when the shift pattern was presented to the employee at the start of his employment.  The Appeal Tribunal (HH Judge McMullen QC presiding) rejected this argument. Its conclusions were as follows:

“24. Mr Bourne contends that the dictionary definition applies in this case because a refusal means the act of refusing, a denial or a rejection of something demanded or offered.  Until the Claimant made his grievance and exercised his right, there was no refusal as required by regulations 30(1) and 30(4).

25. Mr Segal contends that where there is a mandatory regime by statute it remains in place at all times and when the Claimant was required to work subject to that regime he had been denied the entitlement as given to him under the Working Time Regulations to, as it is put simply, a period of daily rest.

26. We see force in both of those points but on balance prefer the argument of Mr Bourne.  The language used in regulations 30(1) and 30(4) does require two positive steps to be taken.  One is exercise of the right and the other is refusal of permission to do so.  Mr Segal acknowledges that literally that is the correct interpretation but argues that it is not consonant with the purpose of the directive, which is for the UK to see to it, under EU health and safety obligations, that workers have adequate rest time.

27. He contends that, purposively construed, regulation 30 entitles the Claimant to count the refusal of permission from the date when he submitted to the regime, that is on the date he started work.  However, these regulations do proceed from the language which we have cited and there is nothing that gives us any guidance in the Directive. It was open to Parliament to have expressed the refusal to permit in neutral terms such as “a failure” or “the non-availability of the right”. We consider this requires answers to two questions.  Did the Claimant exercise the right? Did the Respondent refuse him permission to do so?  And in those circumstances it is correct to say that the obligation is triggered when there has been an actual refusal by an employer.  The definition of refusal fits perfectly with that approach.

28. There are other indicators pointing in that direction.  In other parts of the employment protection legislation there is scope to deal with what might be described as continuing acts. that is, subjecting the worker to a regime which continues over a period of time; failure to promote; a constant discrimination against women by way of a glass ceiling; and so on. Where there is a series of acts, limitation does not begin to run against a Claimant until the last of the relevant acts: see for example wages protection under Part 1 of the Employment Rights Act 1996.  Neither of those additional routes is available to a person complaining under the Regulations.

29. In this case time ran from the refusal to permit the Claimant to exercise his right to have a rest period.  That was unarguably done on 8 April 2006 when his grievance was effectively rejected, and so the default as found by the Tribunal, taking the form of a refusal to permit the worker to exercise his right to time off, took place from that time onwards. No jurisdiction issue as to time for presenting the claim was raised at the Employment Tribunal.”

22.         On behalf of Ms Carter, Mr Fullagar, who appeared at the Tribunal and appears here as well, accepts that she did not allege any request or attempt to exercise the rights to daily rest or weekly rest periods prior to bringing her claim.

23.         His principal argument today is that Miles was wrongly decided.  He argues that an employer is taken to know the law; if the employer organises a work pattern in a way which defeats a worker’s entitlement to daily and weekly rest breaks, he denies that entitlement; and the words “refuses to permit him to exercise any right he has” are apt to include a case where an employer requires a worker to adhere to an unlawful shift pattern, thereby denying him his rights under the WTR.  This, he argues, is consistent with the purpose of the WTD: a remedy which recognises the employer’s positive duty to implement the WTR is a “necessary measure”  for the purposes of the WTD to ensure that employees receive the rest breaks to which they are entitled; whereas leaving employees to discover the law and exercise their rights would leave a substantial gap in the protection which the WTD intended they should have. 

24.         In support of his submission he refers to MacCartney v Oversley House Management [2006] IRLR 514, a decision of the Appeal Tribunal concerning (in part) the WTR of which I was a member.  In that case the Appeal Tribunal held that, contrary to the finding of the tribunal below, the employer had not provided its employee with a rest break which complied with reg. 12.  We said:

“As we have said, there are within part Part III of WTR various exemptions, qualified and unqualified, which modify the obligation under Reg 12(1); but no such provision was relied on before the Tribunal. Since it is plain that by the very method of work imposed on her, OHM refused to allow her to exercise her right to rest breaks, the appeal on this ground must be allowed, and a declaration made that Mrs MacCartney in relation to rest breaks is well founded.”

25.         I drew the parties’ attention to the recent decision of the Appeal Tribunal in Scottish Ambulance Service v Truslove UKEAT/0028/11 (January 2012).  That case was concerned with the time limit in reg. 30(3).  It was argued for the employer that there was a single time limit which ran from the date when a grievance relating to daily rest was refused.  Lady Smith rejected that argument.  She held that the worker’s entitlement to rest breaks was continuous and time ran afresh time on each occasion when the workers did not receive the daily rest to which they were entitled.  She distinguished Miles on the basis that it was concerned with remedy.

26.         Mr Fullagar placed reliance on part of her reasoning.  She said:

“WTR lays down minimum standards of behaviour. As the Advocate – General in the ECJ case of CEC v UK observed, an employer cannot withdraw into a passive role and grant rest periods only to those workers who ask for them (see paragraph 68). The onus is on the employer where daily rest periods are concerned. It would, accordingly, be invidious to interpret the legislation in a manner which renders the enjoyment of the right dependent on the worker asking for that which the WTR already gives to him. That would, however, seem to be inherent in the Respondent’s primary approach, which places such emphasis on the need for there to have been a request and a decision to permit or refuse.”

27.         Mr Fullagar submits that the effect of Miles is indeed to interpret the legislation in a manner which renders the enjoyment of the right dependent on the worker asking for that which the WTR already gives him. 

28.         Although the Employment Appeal Tribunal is not strictly bound by its own previous decisions, we depart from them only in exceptional circumstances, or where there are previous inconsistent decisions.  This is a wise rule for the orderly development of the law.  I consider that there are no exceptional circumstances here; and that I ought to follow Miles.

29.         In the first place, the Appeal Tribunal’s decision in that case accords with the normal and natural meaning of the words used in reg. 30(1).  The word “refused” generally connotes a response.  The response might, I think, be to an attempt to exercise the right; or a request to exercise the right; or a complaint that the employer was not affording the right.  But the normal and natural meaning of the words connotes a response of some kind rather than (for example) mere inadvertence to the statutory right.

30.         I note also that reg. 29(1) which provides for criminal sanctions in certain cases, enacts that the employer shall be guilty if he “fails to comply with any of the relevant requirements”; and reg. 30(1)(b) refers to failure to pay. It would have been straightforward to have adopted similar language in reg. 30(1)(a); the use of the phrase “refused to permit him to exercise” contrasts with the language in reg. 29(1) and reg. 30(1)(b) to the point where it would be surprising if the two phrases were construed to have effectively the same meaning.

31.         While I see force in Mr Fullagar’s argument that the effect of the interpretation in Miles is to leave a gap in the protection for a worker in respect of entitlement to rest, I am not satisfied that this is a sufficient reason for departing from the considered and reasoned conclusion of the Appeal Tribunal, especially since its conclusion accords with the ordinary and natural meaning of the words used by the WTR.

32.         Nor can I afford to the Appeal Tribunal’s decision in MacCartney v Oversley House Management similar status to that of Miles.  In MacCartney the point was not argued at all; so far as I recollect, we accepted the argument for the appellant without any contrary argument on this point.  Moreover, while parts of the reasoning of Lady Smith provide comfort to Mr Fullagar’s argument, Scottish Ambulance Service v Truslove was addressing a different statutory provision – reg. 30(2).  There is a genuine distinction to be made between the wording and the purpose of the two provisions.

33.         Mr Fullagar’s second argument, which he put forward after I drew his attention to the law on this subject, is that Prestige ought not to be permitted to take this point on appeal, not having taken it below.

34.         It is well established that the Appeal Tribunal may allow a new point of law to be raised on appeal, even if it involves permitting a concession made before the tribunal to be withdrawn; but the discretion should only be exercised exceptionally and for compelling reasons.

35.         In Jones v Governing Body of Burdett Coutts School Limited [1999] ICR 38 the authorities on this subject were fully reviewed.  Walker LJ said:

“…  although the appeal tribunal has a discretion to allow a new point of law to be raised or a conceded point to be reopened, the discretion should be exercised only in exceptional circumstances, especially if the result would be to open up fresh issues of fact which, because the point was not in issue, were not sufficiently investigated before the industrial tribunal …”

36.         He cited Widgery L.J. in Wilson v Liverpool Corporation [1971] 1 WLR 302, 307, who had referred to –

37.         In Glennie v Independent Magazines (UK) Limited [1999] IRLR 719 Laws LJ said:

“It is a general principle of the law that it is a party's duty to bring forward the whole of his case at the proper time. The reasoning of Robert Walker LJ in Jones v  Governing Body of Burdett Coutts School [1999] ICR 38 is, with great deference, consonant with this. A new point ought only to be permitted to be raised in exceptional circumstances, as Robert Walker LJ held at page 44B. If the new issue goes to the jurisdiction of the Employment Appeal Tribunal below, that may be an exceptional circumstance, but only, in my judgment, if the issue raised is a discrete one of pure or hard edged law requiring no or no further factual inquiry. There is a public interest, beyond the interests of individual parties, that statutory tribunals exercise the whole of but exceed none of the jurisdiction which Parliament has given them upon such facts as are proved or admitted before them.”

38.         I have reached the conclusion that I should allow the fresh point to be argued in this case.  My reasons are as follows.  Firstly, the point is a discrete point of law, requiring no further factual inquiry or remission to the Employment Tribunal.  Ms Carter did not at any time allege that she had sought to exercise the rights in question; there was no allegation of any refusal in the Miles sense.  Secondly, the point is one which goes to Ms Carter’s entire right to bring her claim to the Employment Tribunal; it is not simply a point of potential defence; rather she did not allege or prove something which was integral to the remedy Parliament provided.  Thirdly, the new point does not rest on any concession by Prestige, or even upon the acceptance by the tribunal below of an argument consciously put forward on Ms Carter’s behalf.  The point is one which both sides and the tribunal missed.  Finally, I see no injustice to Ms Carter if the case is now decided according to law; whereas if the decision stands it will be manifestly contrary to the law as laid down in Miles.

39.         Ms Carter’s claim for payment for the night hours was brought under section 23 of the Employment Rights Act 1996 on the basis that there had been an unlawful deduction from her wages contrary to section 13 of the Employment Rights Act 1996.

40.         Sections 13(1)-(3) provide:

41.         It is important to note that the claim was not brought as a claim under the National Minimum Wage Regulations 1999 (“the NMWR”) (see sections 17-18 of the National Minimum Wages Act 1998).  As Mr Fullagar has confirmed to me (and as the Employment Judge noted in paragraph 65 of her reasons) this was not his case.

42.         The Employment Judge stated the issue in the following terms at the beginning of her reasons: whether Ms Carter was “entitled to be paid her full contractual rate” for the night hours.  Later, in paragraph 56, she stated the issue as follows.

43.         Having stated the issue in that way the Employment Judge considered the provisions of the National Minimum Wage Regulations (“the NMWR”) and of certain cases cited to her – especially Anderson v Jarvis Hotels [2006] EAT/0062/05 (“Anderson”) and South Manchester Abbeyfield Society v Hopkins [2011] IRLR 300.

44.         The Employment Judge’s reasoning was as follows:

45.         On this appeal neither side seeks to uphold the Employment Judge’s reasoning.  Mr Fullagar submits that the Employment Judge ought to have followed Anderson.  Mr Rees submits that the Employment Judge ought to have made findings as to the actual terms of the contract which Ms Carter had with Prestige concerning payment for night hours; and that, the claim being pursuant to section 13 of the 1996 Act, the result would depend on whether Ms Carter had been paid for her contractual entitlement.

46.         In my judgment Mr Rees is correct.  The starting point was for the Employment Judge to find the terms of the contract actually reached between Ms Carter and Prestige.

47.         In Anderson, which concerned a guest care manager at a hotel required to sleep over several nights each week the relevant term of the contract was found to be that he “was entitled to be paid at an hourly rate for those hours that he was, in furtherance of his duties under the contract, working”: see paragraph 16 of the judgment. Once granted that this was the term of the contract, the Appeal Tribunal applied cases decided under the WTR by way of analogy in determining what the parties meant by the term they had agreed: see paragraphs 17-23 of the judgment. 

48.         In this case, however, there is no finding as to the term of the contract.  Prestige’s case, as I have pointed out, was that Ms Carter was employed on the terms of its own rates as advised to her from time to time.  If this is correct, then the reasoning in Anderson has no application.  Ms Carter’s statement to the Tribunal was vague, but her case could be put on the basis that there was a term, explicit or by necessary implication, that she would be paid a working rate at night, at the very least when she was actually working.

49.         The Appeal Tribunal deals only with questions of law.  It is not the province of the Appeal Tribunal to make a finding of its own as to what the relevant terms of the contract were as to payment, or what variations there may have been.  There is little direct help to be gleaned from the statements of the parties, and I do not know what oral evidence was given.  It is only if Ms Carter was not paid in accordance with the terms of her contract that her claim for unlawful deduction from wages can succeed (the case, I stress again, not being put under the NMWR).  The matter must be remitted to the Tribunal for these findings to be made.

50.         On the whole, applying the criteria in Sinclair Roche Temperley v Heard [2004] IRLR 763, I think the best course is to remit the claim to a different Employment Judge who will be able to focus on this aspect of the case.  The parties would be well advised to concentrate upon, and prepare and exchange evidence which will focus upon, the key issue on remission – what were the terms of the contract as to payment?  The Employment Judge should, approach this matter entirely afresh; he or she is not bound by any of the findings or reasoning hitherto.