Appeal No. UKEATS/0028/11/BI
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At
the Tribunal
On
12 January 2012
Before
THE HONOURABLE LADY SMITH
(SITTING ALONE)
SCOTTISH
AMBULANCE SERVICE APPELLANT
(1)
MR P TRUSLOVE
(2) MISS E WOOD RESPONDENTS
Transcript of Proceedings
JUDGMENT
THE
HONOURABLE LADY SMITH
Introduction
1.
This appeal concerns the interpretation of the time bar provisions of
the Working Time Regulations 1998 (‘WTR’). It is an employers’
appeal from a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge R Christie, registered on 4 April 2011, finding that the Claimants’
claims were not time barred.
2.
I will continue, for the sake of clarity, referring to parties as Claimants
and Respondent.
3.
The Respondent was represented by Mr Brown, solicitor, before the Tribunal
and before me. The Claimants were represented by Mr Bathgate, solicitor,
before the Tribunal and by Mr P Edwards, of counsel, before me.
Relevant provisions of WTR
4.
The relevant provisions of WTR are:
“10 Daily rest
(1) [A worker] is entitled to a rest period of not less than
eleven consecutive hours in each 24 – hour period during which he works for his
employer.
………..
13 Entitlement to annual leave
(1) Subject to paragraph (5) a worker is entitled to four
weeks’ annual leave in each leave year.
………………………
15 Dates on which leave is taken
(1) A worker may take leave to which he is entitled under
regulation 13…on such days as he may elect by giving notice to his employer in
accordance with paragraph 3………
………………
21 Other special cases
Subject to regulation 24, regulations….10(1) …….do not apply in
relation to a worker –
(a) where the worker’s activities are
such that his place of work and place of residence are distant from one
another…or his different places of work are distant from one another;
……………………
(c) where the worker’s activities
involve the need for continuity of service ……..as may be the case in relation
to –
(i) services in relation to the
reception, treatment or care provided by hospitals or similar establishments……………
24 Compensatory rest
Where the application of any provision of these Regulations is
excluded by regulation
21 ……..and a worker is accordingly required by his employer to
work during a period which would otherwise be rest period…..
(a) his employer shall wherever
possible allow him to take an equivalent period of compensatory rest, ………
30 Remedies
(1) A worker may present a complaint to an employment tribunal
that his employer –
(a) has refused to permit him to
exercise any right he has under-
(i) regulation
10(1) or (2) of, 11(1), (2) or (3), 12(1) or (4), 13 or 13A;]
(ii) regulation 24, in so far as it applies where regulation 10(1) …….is excluded…..
………………………………..
(2) An employment tribunal shall not consider a complaint under
this regulation unless it is presented –
(a) before the end of the period of
three months…….beginning with the date on which it is alleged that the exercise
of the right should have been permitted (or in the case of a rest period or
leave extending over more than one day, the date on which it should have been
permitted to begin)……
…………………………
(3) Where an employment tribunal finds a complaint under
paragraph 1(a) well- founded, the tribunal –
(a) shall make a declaration to that
effect, and
(b) may make an award of compensation
to be paid by the employer to the worker.
(4) The amount of the compensation shall be such as the
tribunal considers just and equitable in all the circumstances having regard to
–
(a) the employer’s default in
refusing to permit the worker to exercise his right, and
(b) any loss sustained by the worker
which is attributable to the matters complained of. ”
Background
5.
The Respondent provides an ambulance service and the Claimants are
relief ambulance workers who provide cover when full time employees are absent
on, for instance, annual leave or sick leave. The Claimants presented
complaints to the Tribunal on 26 October 2009. They claim that (a) time spent
travelling to ‘detached stations’ is working time for the purposes of WTR; (b)
time “on call” is also working time for WTR purposes; and (c) that account
requires to be taken of such travelling time and on call time when calculating
the daily, which failing, compensatory rest to which they are entitled under
paragraph 10(1) and 24 WTR. It has not, at this stage, been
determined whether or not paragraph 10(1) applies but that does not, for
the purposes of the issue to be determined, matter. As is evident from the
terms of paragraphs 10, 24 and 30 of WTR, if paragraph 10(1) is not
applicable, then paragraph 24 applies and paragraph 30, which
contains the time bar provisions, applies in both events.
6.
I understand it to have now been conceded that time spent travelling to
detached stations is working time, but that too is not relevant to the issue
that was determined by the Employment Judge and which arises on appeal. It
requires only to be noted that the Claimants’ contention is that, once a
correct calculation of their working time is carried out, they have not been
receiving the daily rest (or compensatory rest) to which they were and are
entitled. In particular, they contend:
·
That there were occasions between 23 September 2008 and
27 April 2009 when they did not receive the rest to which they were
entitled;
·
That there were occasions between 27 April 2009 and
26 October 2009 when they did not receive the rest to which they were
entitled.
7.
The Claimants lodged a grievance with the Respondent in which they
raised their contention that they were not receiving the rest periods to which
they were entitled on 23 July 2008. On 23 September 2008,
the Respondent refused that grievance. The Claimants appealed but their
appeals were also refused.
8.
These events having taken place at a time when the statutory grievance
procedures were in place, the Claimants were entitled to the benefit of
Regulation 15 of the Employment Act 2002 (Dispute Resolution)
Regulations 2004, the effect of which was, parties agreed, that the
three month time bar provision in paragraph 30 of WTR was extended by
a further three months.
The Respondent’s contention
9.
The arguments advanced on behalf of the Respondent, on appeal, were,
essentially, the same as those presented to the Employment Judge. They can be
summarised as follows.
10.
Their primary submission was that time started running when the grievance
was refused on 23 September 2008. Esto they were wrong about
that, then it started running on the date of the first of the missed rest
periods, which was some time prior to 27 April 2009. In either
event, the claims in these cases were, accordingly, time barred.
Submission that time ran from refusal of grievance
11.
Mr Brown’s approach was that it was crucial to the purpose of time
bar that there was a single date. The Regulations showed that Parliament had
singularity in mind; Regulation 30(2) referred to “the” date, it used
“exercise” as a noun not as a verb, Regulation 30(4) was to be read as
referring to a single date of refusal to give permission and it was not
appropriate to construe the provisions as allowing for an ever shifting period for
time bar which could restart. He referred, in support of his submission, to
the case of Mr P Miles v Linkage Community Trust Limited
UKEAT/0618/07/DA. Although time bar was not an issue in Miles,
the case was, he submitted, authority for the proposition that the date of
refusal was of crucial importance. I should add that whilst Mr Brown
initially submitted that it was not open to the Claimants to seek to argue that
Miles should be departed from (that not having been expressly
argued before the Employment Judge) he accepted that he was in a position to
deal with the argument and did so. Miles was, he submitted,
correct and involved detailed analysis which should be followed. The
Corps of Commissionaires v Hughes [2009] ICR 345 in which Silber J, sitting in this Tribunal, whilst perhaps not supportive of his primary
submission could, he submitted, be read as supportive of his proposition that
time ran from the first date that the Claimants ought to have received a
relevant rest period. So far as his primary submission was concerned, Hughes
ought not to be preferred; Miles should be followed.
12.
Mr Brown recognised that the words in parenthesis in
Regulation 30(2) might, on the face of matters, present him with
difficulties regarding his primary submission. His way of dealing with that
was to suggest that it made sense that different considerations should apply if
the rest period spanned two consecutive dates.
13.
As to what would be the position if a worker raised a fresh grievance –
perhaps because he had not been working for the employer at the time of the
original grievance dealing with the issue – Mr Brown’s position appeared
to be that that would trigger the start of a fresh time bar period.
Submission that time ran from date of first missed rest period
14.
Mr Brown submitted that the wording of Regulation 30(2)
appeared to envisage a single date, not a series of dates. Parliament could
have provided for the latter but had not done so. He referred again to his
arguments about the singularity of the wording. “Exercise” was used as a noun
in Regulation 30(2), “exercise” meant “to put into operation” (The Shorter
Oxford English Dictionary) and that, accordingly, showed that there was a
single start point for a single time bar period, namely the date on which the right
should have been put into practice or operation. That event occurred only
once. To interpret the Regulation in any other way would serve to create
uncertainty, undermined the use of “exercise” as a singular noun and might
involve postponing the operation of time bar every time there was a missed rest
period. That cannot have been the intention of Parliament. The purpose of
time bar provisions was to bring finality to a disagreement and his
interpretation would do that. The employer needed to know when the dispute was
at an end.
15.
His approach was not, he submitted, inconsistent with the case of Hughes
and continuation of a right did not mean that the right to bring a claim also
continued in perpetuity. He referred, in support of that submission, to the
case of Humphries v Chevler Packaging Ltd UKEAT/0224/06/DM.
16.
Finally, regarding the observations of the ECJ in the case of Commission
of the European Communities v UK [2006] IRLR 888, a case in which the court held that the terms of certain DTI guidelines – which stated that
employers were not obliged to ensure that workers took the rest periods to
which they were entitled – were such as to amount to a failure by the UK to
fulfil its obligations under the Working Time Directive 93/104 (“WTD”), Mr Brown
submitted that it was not relevant as it did not relate to time bar.
Provisions relating to time bar did not affect a worker’s right to enjoy a rest
period although a worker’s inaction would prevent them from being able to
complain about a failure to permit them to exercise those rights.
The Claimants’ contentions
17.
Mr Edwards’ submission was that time ran from the date on which
each rest period should have occurred in accordance with the Claimants’ rights
under Regulation 10 (or Regulation 24). The wording of the relevant
provisions of WTR were clear and unambiguous. There was no reference in
Regulation 30(2) to “refusal”, to “grievance” or to the retriggering of
the period if a fresh grievance was lodged.
18.
He submitted that the Respondent’s approach was to, in effect, put a
line through the wording of Regulation 30(2) and to add words to it.
19.
Further, there was nothing in the wording of Regulation 30(2)(a) to
indicate that it was only on the first occasion of a missed rest period that
time started to run. Parliament cannot have intended to say that a worker
would lose the right to claim if he missed the 3 month deadline from the
first such date; it was wrong to read a single opportunity approach into the
legislation. To do so would be contrary to the principles of WTD, for which he
referred to CEC v United Kingdom; it was no
answer to say that employers were entitled to certainty and there would be no
question of the ECJ supporting that given their approach in that case.
Further, the Respondent’s approach gave rise to the potential for unequal
treatment amongst workers. A worker who joined the employer after the
determination of a prior grievance, would have the opportunity to claim where
those involved in that earlier grievance might not.
20.
As for the interpretation of the word “exercise”, it simply meant
“use”. Each time that a worker had a rest period, it was “used”. It was not a
matter of it only applying to the putting a particular regime in place on a
single start-up occasion. It was highly improbable that the Respondent’s
interpretation was what had been intended by Parliament.
21.
One of the keys to the error in the Respondent’s approach was, he
submitted, that they failed to recognise that Regulation 30(1)(a) was
separate and whilst it provided a gateway, it was not an aid to the
interpretation of Regulation 30(2). He referred to the contrast between
the provisions of WTR regarding daily rest periods and those regarding annual
leave. Whilst, to exercise the latter, the worker required to ask for leave,
there was no requirement in the Regulations for the worker to ask for other
rest periods. There, the onus was on the employer to provide them. Nor was it
right to suggest that a worker needed to make a complaint before he had a right
to a rest period.
22.
Whilst his submissions did not depend on a rejection of what was said in
Miles, since it was not a time bar case, he submitted that
HHJ McMullen QC was wrong if he was to be taken as saying that time
ran for time bar purposes from the date when permission was refused, that being
when the claimant’s grievance was rejected. Silber J’s statement in Hughes,
at paragraph 42, that time ran from the date when the employee should have
been actually given his rest period, was to be preferred. The Miles
approach would not be tolerated by the ECJ given the indications in CEC v UK that what mattered was the employer’s obligations;
there was no place for inserting an impediment such as requiring that the
claimant having asked for permission to take his rest, before he could claim
for a breach of the Regulations.
23.
As to any anxieties over the language used in Regulations 30(1) and
(2), it should be remembered that it required to be able to apply both to rest
for which a worker did not require to ask permission (such as the rest in the
present case) and rest for which he did (annual leave).
24.
As for the suggestion that it was only the first occasion of failure to
afford a worker his rest period that counted, there was simply nothing in the
legislation to support that proposition. It would not, in any event, achieve
the certainty sought by the Respondent. Different employees might be able to
point to different dates with this, as with grievances (not that the Respondent
had pointed to any material to support their public policy/ “certainty”
argument).
Tribunal’s Judgment
25.
The Employment Judge was not persuaded by the Respondent’s arguments.
He emphasised that the WTD made it clear that each of its operative provisions
laid down a “minimum” standard and insofar as daily work/rest was concerned,
provided for a maximum of thirteen hours work each day. He concluded that
the Regulation 10 right to daily rest was a legal right which arose every
day – or, at least, in every consecutive period of 24 hours. Any refusal
by the employer could not affect the continuation of that right. The
Employment Judge recognised that Miles was binding on him
but did not accept that it was a decision as to the proper interpretation of
Regulation 30(2). Regulation 30(1) set out a precondition, namely that
the worker could not present a complaint unless he had first complained about
the matter to his employer; that could be a complaint about rest not afforded
to him in the past or about what was to happen in the future. Regulation
30(2), by contrast, dealt solely with the time within which the complaint had
to be made. Whilst it referred to “should have been permitted” that wording
could refer to occasions which were in the future when permission was granted
or refused. Time then ran from the occasions when the rest in question should
have been permitted.
26.
The Employment Judge accordingly rejected the Respondent’s submissions
and allowed the claims to proceed to a full hearing.
Discussion and Decision
27.
There is no merit in this appeal. I do not consider that Mr Brown
was able to point to any respect in which the Employment Judge erred in law. I
agree, rather, that the Employment Judge’s analysis was sound.
28.
The terms of Regulation 30(2) and their effect in the case of rest
periods of the sort complained about in these claims, are clear. The relevant
question is: on what date should the Claimant have enjoyed the
Regulation 10 (or Regulation 24) rest to which he has a continuing
right under WTR and about which he is complaining? Time bar then runs from
that date. If there were any doubt about that, it is resolved by a reading of
the words in parenthesis which deal with the situation where the rest period in
question would have started one day and extended into the following day. No
issue regarding such a period would arise if time ran from an earlier date when
the employer had, in response to a request, indicated that the rest would not
be allowed. It does, however, have to be provided for because
Regulation 30(2) means that time starts to run from the date when the rest
in question, the historic lack of which the Claimant is complaining about,
should have begun. To put it another way, it is the date on which the worker
would, absent the employer’s breach of duty, have begun using his right to
daily or compensatory rest.
29.
I also agree that it is important to put matters in context. As the
Employment Judge noted, 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. A distinction
has to be drawn , of course, between daily rest periods and annual leave –
which does require to be specifically requested (see Regulation 15) – and
is explanatory of the need, in Regulation 30, to cover those situations
where triggering of the right depends on requesting it as well as those which
do not. The language requires to be apt for claims both about daily rest and
about annual leave. In my view, it is. That is not, however, to say that it
has the effect on the start date for time bar for which the Respondent argues.
30.
Regarding Miles¸ I note the suggestion that the fact that
Regulation 30(1) refers to there having been a refusal to permit indicates
that there must first have been a request and that the Respondent’s obligation
was not triggered until the date when it was refused. However, Miles
was expressly not a decision about time bar (see paragraph 29); it
concerned the relevant period for the purposes of calculating compensation
under Regulation 30(4). Insofar as there was detailed analysis, it was
for that purpose, not for time bar. I agree with Silber J’s approach, as
stated in paragraph 42 of Hughes. It seems to have appeared
obvious to him that time ran from the date that the Claimant should actually
have received the relevant rest period and that is, I consider, understandable
31.
I do not consider that Humphries, a case about reasonable
adjustments, is of any assistance. In any event, Mr Edwards did not
suggest that workers in the position of the Claimants had perpetual rights to
claim because they had continuing rights to rest. His position was that each
time a worker did not actually receive the rest to which he was entitled under
WTR (a right which was not dependent on having specifically asked for it), a
fresh time bar period started to run. He fully accepted that they could not
extend their claims back further than three months (save for where the
statutory grievance procedures had the effect of extending that period to
six months). I agree that that approach is in accordance with the
provisions of Regulation 30(2).
32.
I turn to the Respondent’s proposition that if the correct start date
was not the refusal of the grievance then it was the first date on which, had
it not been for the regime determined on, the Claimants did not receive the
rest for which they contended. I agree that there is no merit in it. Nothing
in the wording of Regulation 30(2) supports such an interpretation.
Further, it would not accord with the overall purpose of the WTR which is,
plainly, that in each and every 24 hour period of working for the
employer, the employer has a duty to afford him 11 hours rest. There is
no reason in principle or in the wording of the WTR or WTD for restricting Claimants
in the manner that the Respondent suggests.
Disposal
33.
In these circumstances, I will pronounce an order dismissing the appeal
and remitting the case to the same Employment Tribunal to proceed as accords.
