THE HONOURABLE MR JUSTICE LANGSTAFF (PRESIDENT)
1.
This is an appeal against a judgment which raises the question of the
correct approach to determining what hours are to be paid at the minimum rate
of the National Minimum Wage when averaged with other working hours.
2.
Employment Judge Johnson at Teeside in reasons sent on 19 November 2012
dismissed the Claimant’s complaints of unfair deductions from wages. The facts
giving rise to her claims were these: Mrs Whittlestone was employed by BJP to
provide care services to clients, so called “service users”, including those
nominated by Redcar and Cleveland Council. She was paid at the rate of £6.35
per hour under her contract for the time which she actually spent providing
care at the home of a service user. That rate was calculated on the basis of
time spent from the moment of arrival at the home to that of departure. That
interval of time was termed a shift. The expression “shift” was adopted in the
contract which provided under the heading “Hours of Work”
“You are employed on shift working. Each working week
compromises of 50 shifts of hours from 7:00 am to 10:00 pm in accordance with
the weekly rota prepared by your supervisor.”
3.
It is plain that in the context of this particular employment “shift”
had an unusual sense. It related to each individual period of time spent with
each individual service user. The rota often was such that Mrs Whittlestone
had a number of service users to visit during a day, frequently with little or
no intermediate prospect of her going home between visits. Under her contract
time spent travelling, which she did by bus, between the home of one service
user and the next to be visited, was not counted.
4.
The contract, also in clause 6 under the heading “Hours of Work”, said
this in the second paragraph:
“In addition to your normal working hours you will be expected
to cover some “on call” shifts. You’re (sic) on call days will be identified
on your weekly schedule. Failure to be available for you’re (sic) on call days
will result in disciplinary action. You may also be required to undertake
additional shift work from time to time and if so, reasonable notice of such
shift working will be given to you.”
5.
It was common ground that there were no fixed hours even though the
description “normal working hours” appears there in the contract. In the
Claimant’s case she was required, whether as an on call shift referred to under
clause 6 or separately, but in either event required, to undertake shifts from
11:00 pm to 7:00 am which were termed “sleepovers”. This was to provide
potential physical care for three young adults who suffered from Down’s
Syndrome. She was provided with a camp bed and, the Judge found, with bedding
which she could use to sleep overnight in the living room of the house occupied
by the three young adults. As it happens, there was no evidence that whilst
doing that, which she regularly did, she ever woke from her sleep in order to
provide any specific care.
6.
The Claimant gave notice following a dispute which her husband, who had
also been employed by the Respondent, had with them and as a result of which he
left their service. The notice period was four weeks. During those four weeks
she was not provided by BJP with the same hours of work as had been provided to
her during the previous 12 weeks and for that matter before that. A schedule
prepared by the Respondent setting out the hours of work was provided for the
Tribunal; that showed that in the 12 weeks prior to the notice period beginning
the Claimant had only once worked less than 32.25 hours during the day and only
once had worked less than 18 hours during the night in the course of those
weeks. The one week in which she spent no hours at all working was the week
beginning 22 January 2012.
7.
The Claimant claimed that she was entitled to be paid the National
Minimum Wage in respect of time spent travelling between service users’ homes,
that is not from home to the first service user nor from the last of the day
back to home, but between the assignments to service each service user.
Secondly, she claimed she was entitled to be paid, at the rate of National
Minimum Wage for the eight hour sleepover, more than the £40 per week which she
was paid by the Respondent, which was plainly less than the National Minimum
Wage at the time if calculated on an hourly basis.
8.
Thirdly she claimed to be paid the various sums which were conceded or
found by the Tribunal Judge but in respect of which the Respondent claimed to
offset what it is said was an overpayment of wages utilising the terms of section
14 of the Employment Rights Act 1996 to do so. That extinguished the payment
of £214.10 which otherwise would have been due.
The law
9.
The National Minimum Wage Act 1998 provides by section 1(1) that:
“A person who qualifies for the National Minimum Wage shall be
remunerated by his employer in respect of his work in any pay reference period
at a rate which is not less than the National Minimum Wage”
10.
The Claimant qualified. Under section 2 headed, “Determination of
Hourly Rate of Remuneration” it is provided:
“2(3)(a). The regulations may make provision with respect to –
(a) circumstances in which, times at which, or the time for
which, a person is to be treated as, or as not, working, and the extent to
which a person is to be so treated.”
11.
Thus what is “work” for the purposes of the Act is to be determined by
those Regulations made under its powers. It is not to be determined by the Working
Time Regulations which derive from European obligations nor by any common
law or conventional view of what constitutes work.
12.
The Regulations (the National Minimum Wage Regulations 1999) deal
with the concepts of time work, salaried hours work, output work and unmeasured
work. It is common ground that the Claimant’s contract and what occurred fell
within the scope of time work. Regulation 3 headed, “The Meaning of Time Work”
provides as follows:
“In these regulations “time work” means -
(a) work that is paid for under a worker’s contract by
reference to the time for which a worker works and is not salaried hours work.”
13.
The work which was time work so far as the Claimant was concerned was therefore
the work which the contract, which in this case was both written and, judging
from the findings of fact the Tribunal, oral, required her to do as work. That
was both the shifts and the night time sleepovers.
14.
Regulation 15 makes provisions in relation to time work. Those
provisions insofar as material to the issues in this case are as follows:
“(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 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.
(2) Time when a worker is travelling for the purpose of duties
carried out by him in the course of time work shall be treated as being time
work except where:
(a) the travelling is incidental to the
duties carried out in the course of time work, the time work is not assignment work
and the time is time when the worker would not otherwise be working or;
(b) the travelling is between the
worker’s home or an address where he is temporarily residing other than for the
purposes of performing work, and his place of work or a place where an
assignment is carried out.
(3) For the purposes of paragraph 2(a) -
(a) travelling is incidental to the
duties carried out by a worker unless duties involved in his work are
necessarily carried out in the course of the travelling, as in the case of a
worker driving a bus, serving in a bar on a train or whose main duty is to
transport items from one place to another, and
(b) time work is assignment work if
it consists of assignments of work to be carried out at different places
between which the worker is obliged to travel that are not places occupied by
the worker’s employer.”
15.
The following observations can be made. First Regulation 15(1) deems
some work which is not otherwise time work to be regarded as time work. If
work is being done which is time work as defined by Regulation 3 then 15(1) has
no application. It only applies to oblige an employer to treat as time work
that which otherwise would not be. Second, that work is not to be equated to
any particular level of activity. The saying, “they also serve who only stand
and wait” is true but it does not necessarily assist in knowing whether the
standing and waiting is work or whether it is not: however, it is only to be time
work if deemed to be under section 15(1) or (2), and not excluded from the
scope of 15(1) by Regulation 1A nor excluded from paragraph 2 by the exceptions
in 2(a) and 2(b).
16.
Thus the cases, as I shall show, note that where a person’s presence at
a place is part of their work the hours spent there irrespective of the level
of activity are classed as time work. Difficult cases may arise where a worker
is obliged to be present at a particular place. That presence may amount to
their working. Conversely it may not. An example of the latter might
typically be where a requirement is imposed upon an employee to live at or near
a particular place but it is not necessary for that employee to spend
designated hours there for the better performance of the contractual duties.
This is unlikely to be time work: presence facilitates work but it is not
itself work. Conversely where specific hours at a particular place are
required, upon the pain of discipline if they are not spent at that place, and
the worker is at the disposal of the employer during that period, it will
normally constitute time work.
The Tribunal Decision
17.
With those observations, and bearing in mind that the jurisdiction is
entirely statutory and governed entirely by the statute and regulations, I turn
to the decision made in the present case by the Judge. The Judge drew very
heavily upon City of Edinburgh Council v Lauder. That was a
decision of Lady Smith sitting in the Appeal Tribunal, delivered on 20 March
2012 UKEATS/0048/11. Sheltered housing residential wardens had tied
accommodation. Their contracts provided that they should have salaried hours
of work of 36 hours per week. In addition they were required to be on call at
the tied houses outwith their normal working hours on four nights during the
working week. She held that the Employment Judge fell into error by failing to
recognise a distinction drawn in the authorities between those cases where a
worker was at work, and where a worker was one who, being merely “on call”, was
not. Lady Smith observed in paragraph 48 that matters might have been
different if the entirety of the work the claimants were employed to do was to
be available during the night time hours to be called on if required, but that
was not the position in the case before her. She found that the claimants were
not performing what was, in that case, salaried hours work on the nights that
an alarm system was connected to their tied accommodation, even though had it
rung whilst they were in the accommodation they would have answered the summons.
18.
The Tribunal Judge drew from that in paragraph 12 that there is a
dichotomy between cases where an employee is working merely by being present at
an employer’s premises and those where the employee is simply “on call”. He
observed:
“Lady Smith noted that although regulation 15(1A) does not use
the words “on call”, it was plain that the subsection covers the situation
where the worker’s normal work is something he does other than during the
sleeping hours, albeit that after that work is finished the worker at some
point sleeps at or near his place of work and may, but will not necessarily, be
woken up and called upon to work.”
19.
At paragraph 14, the Judge said this by way of self direction of law:
“14. What the Tribunal must therefore do is
recognise the two distinct categories of workers and, in particular, decide
whether the worker’s core job is separate from and not done at the same time as
the “on call” period. It is particularly useful to note whether the worker’s
remuneration is stated to be for their “core work”. The position may be
different if the worker is recruited solely to be available to be called upon
during the night by the telephone operators from British Nursing Association or
the night watchman in Scottbridge. It is therefore crucial for
the Tribunal to identify whether the on call work is additional to the worker’s
core or normal work.
15. In the claimant’s case she was clearly recruited to provide
care to a number of different service users at their own homes or premises.
The claimant would have travelled between those various service users’ premises
to provide care. That was the claimant’s core or normal work. The claimant
was not obliged to accept overnight work caring for the three young adults with
Down’s Syndrome, she did however agree to do so and that overnight work was
separate from and different to her core or normal work.
16. The claimant agreed to carry out the overnight work for a
fixed fee of £40. Throughout her period of employment with the respondent when
she carried out the overnight work she was never called upon to actually
perform any work. She effectively slept throughout the overnight shift. The
Tribunal found that the claimant’s overnight work for the respondent was not a
“sleep over job” such as in Scottbridge or British Nursing
Association, the claimant was effectively “on call” as in Hopkins.
Accordingly, the overnight shift fell within regulation 15(1A). Accordingly
time during the hours when the claimant was sleeping over could only be treated
as “time work” when she was at work for the purposes of working. By her own
admission there were no such hours. It must therefore follow that the claimant
was not entitled national minimum wage for the entirety of the sleep over
shift.”
20.
The Judge then turned to deal with travelling time. He had earlier set
out the regulations. He regarded the question as being whether the travelling
between each service users’ premises was incidental to the duties carried out
in the course of time work and that time was time when the Claimant would not
otherwise be working and distilled that into:
“The simple question for the Tribunal to ask in the claimant’s
case is whether the travelling between service users’ premises was incidental
to the duties she was carrying out in the course of her time work.”
21.
The answer he gave was this, again following at paragraph 17:
“17. The Tribunal found it clear and obvious that the claimant
was not carrying out any care work or care duties during the time when she was
travelling between one service user’s premises and the next. The claimant was
simply transporting herself from one set of premises to another and effectively
from one shift to the next. During that time no care work was being done and
no care services were being provided. The mode of transport was entirely at
the claimant’s discretion, the time taken was entirely at the claimant’s
direction and the route adopted was entirely at the claimant’s discretion. If
the period of time between one shift and the next exceeded the amount of time
required to do the travelling then the claimant was free to do as she pleased
in the surplus time. She could return if she had sufficient time or could take
a rest period or break. The Tribunal found that the travelling was purely
incidental to the duties carried out in the course of the claimant’s work for
the respondent and therefore could not be treated as being “time work”. The
claimant is therefore not entitled to be paid for the period of time during which
she was travelling and accordingly the provisions of the National Minimum Wage
Regulations do not apply to that time.”
22.
As to the third point, the allegation that there had been an unlawful
deduction from wages, it was agreed that a sum of £214.10 should not have been
deducted but no money was ordered to be paid by the Respondent to the Claimant
by the Employment Judge because at paragraph 18:
“The respondent gave evidence to the effect that the claimant
had been paid during her notice period for a total of 200 hours whereas she had
in fact only worked 80.25 hours and had therefore been overpaid for 119.75
hours in the sum of £760.42 … The respondent is entitled to set off against
that overpayment of £760.42 the sum owed to the claimant in the sum of £214.10.”
23.
He thought that although the balance was due from the Claimant to the
Respondent, the Respondent could not raise a claim for it before the Tribunal and
so did not order the Claimant to pay any of the balance to the Respondent.
24.
A further issue arose which has featured on this appeal; that is whether
the sleeping facilities provided for the Claimant were suitable. This would be
relevant if Regulation 15(1A) operated in the present case as a qualification
to Regulation 15(1) which itself would only come into operation as a deeming
provision if the work being done by the Claimant was not otherwise time work.
The evidence for the Claimant had been that there was no bedding provided, but the
Judge concluded as a matter of fact that it was available. Mr Morgan
challenges that decision as being perverse since it did not reflect the whole
of the evidence nor consider whether the bedding provided could have been
washed, if it had been used by those previously engaged in a sleep over and
dried so as not be sopping wet when the Claimant herself had to use it.
25.
However forceful those points might be they are evidential points. Mr
Morgan accepts that although there had been nothing in advance to predict that
the evidence of the Respondent would be that there was bedding, that was what
was said in the course of evidence orally at the Tribunal. It follows that
there was evidence before the Judge upon which he could come to the conclusion
he did. It cannot be said that the conclusion is perverse. It is a conclusion
of fact. It must stand. So far as the appeal concerns that finding it must be
rejected.
The submissions
26.
Mr Morgan argued that the Judge had failed to have regard to the proper
direction that should have been applied in respect of time work when dealing
with sleepovers. He argued that the principles were clearly set out in Burrow
Down Support Services Ltd v Rossiter [2008] ICR 1172, a decision of the
Appeal Tribunal presided over by Elias P. That was a case in which it had been
contended that a night watchman who slept as a night sleeper throughout much of
the night was not entitled to the minimum wage. The Appeal Tribunal concluded
that he was.
27.
The argument before the Tribunal below had concerned two earlier cases, British
Nursing Association v Inland Revenue [2002] IRLR 480 [2003] ICR 19 and Scottbridge
Construction Ltd v Wright [2003] IRLR 21 in which the Regulations as
they had originally been made had been construed. Those two cases involving
employees who were entitled to sleep during their night time shift.
28.
In the British Nursing Association case the workers worked
at night from home; they took telephone bookings for nursing staff who were on
the bank. Whereas they had done that by day from the employer’s premises, when
it came to night time they did it from their own homes. Plainly they could
sleep when there was no phone call to answer. The Court of Appeal upheld a
decision at first instance that the claimants were working for the whole of the
period in which they were waiting to answer the phone and not simply when they
answered it. There was no reason to treat night workers any differently simply
because they carried out the task from home. Buxton LJ made it clear that Regulation
15 had no application because it only arose in a case where a worker was not in
fact working but was on call waiting to work. It was that principle, which I
have already expressed earlier in this Judgment, which Elias P drew from the
case; see paragraphs 14 and 15 of Rossiter.
29.
Scottbridge Construction concerned a night watchman. It
was agreed that he performed actual tasks physically whilst awake for no more
than four hours of a night lasting over 14 hours. There were considerable
periods when he was allowed to sleep. He was given sleeping facilities. An
Employment Tribunal decision that he had been only working for the four hours
when he had to be awake performing tasks was rejected by the Appeal Tribunal, Lord
Johnston presiding, who held that the worker was working for the whole of the
period since he was required to be on the premises for the duration of the 14
hours. On appeal to the Inner House of the Court of Session the court agreed
with Lord Johnston. Of importance for the present case, as it seems to me, is
paragraph 11:
“The work which was paid for under his contract by reference to
the time from which he worked was for the purposes of regulation 3 his
attendance as a night watchman for the whole of those hours. The fact that the
activities of a night watchman were not spelt out in the letter is neither here
nor there. More importantly, the fact the respondent had little or nothing to
do during certain hours when he was permitted to sleep does not take away from
the fact that he was throughout in attendance as a night watchman and required
at any time to answer the telephone or to deal with alarms. The Employment
Tribunal in our view confused their estimate of the hours during which the
respondent was generally active with an overall consideration of what was
required of him as a night watchman at any time. Thus we do not accept as
conclusive the decision of the Employment Tribunal as to the period which was
relevant for the purposes of the national minimum wage. On the facts before it
the whole 14 hour period fell to be regarded as “time work.”
30.
The Lord President there made very clearly the point that work is not to
be confused with any particular and specific activity. Colloquially, work
might bring to mind images of physical or sustained mental effort. Neither is
necessary for something to constitute work, though the context will be the
contract and the facts which surround that contract under which the work is
said to be performed.
31.
In Rossiter, Elias P, having referred to the two cases
which I have expanded upon, had to consider whether the change in the
regulations by the introduction of Regulation 15(1A) in its present form would
result in cases such as British Nursing Association and Scottbridge
being decided differently. At paragraph 23 he concluded it would not. 15(1A)
is a qualification to 15. 15(1) is only relevant if no actual time work is
being done. It is a deeming provision to make that which is not otherwise time
work be regarded as such.
32.
In paragraph 24 Elias P observed:
“The claimant was at work for the whole of the shift essentially
for the reasons given in Scottbridge. 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 […] so neither regulation 15(1) nor regulation 15(1A) were ever engaged.”
33.
He added at paragraph 25:
“We recognise that there is some artificiality in saying that
someone is working when he is sleeping, but the justification for this and the
steps which the employer might take to ensure that he is getting value for the
wage paid was summarised as follows by Lord Johnston when hearing the Scottbridge
case in the EAT at paragraph 9:
‘It is wholly inappropriate for the employer while
requiring an employee to be present for a specific number of hours to pay him
only for a small proportion of those hours in respect of the amount of time
that reflects what he is physically doing in the premises. The solution for an
employer who wishes an employee to be present as a night watchman or the
equivalent is to provide him with alternative and additional work on the
premises which enables him both to provide the employer with remunerated time
and also the protection of someone on the premises for security reasons.’”
34.
Mr Morgan argues that that approach was recognised by Underhill J as
President in this Tribunal in the case of Wray v JW Lees & Co (Brewers)
in a judgment delivered on 14 July 2011 UKEAT/0102/11. That was a case in
which a temporary pub manager was required to sleep on the premises. His claim
that the hours that he slept there should be taken into account was dismissed
by the Tribunal. On its findings of fact it was clear that the claimant was
not working during the periods in question.
35.
The case is important in Mr Morgan’s submission not for the particular
decision which was made, but for what is said in the course of the judgment
about the general principles which are applicable. At paragraph 11 Underhill J
said this:
“11. There is now a fair amount of case law on whether sleeping
periods of one kind or another constitute work, whether time work or salaried
hours work for the purpose of NMWR. The authorities are helpfully reviewed in
the recent decision of this Tribunal, HHJ Reid QC presiding, in South Manchester Abbeyfield Society v Hopkins & Woodworth
[2011] ICR 254. There is no point in our performing the same exercise. Judge
Reid QC said at paragraph 38 of the Reasons, pages 264 to 265:
‘We take the view that for national minimum wage purposes
the cases show a clear dichotomy between those cases where an employee is
working merely by being present at the employers premises, e.g. a night
watchman, whether or not provided with sleeping accommodation and those where
the employee provided with sleeping accommodation is simply on call. In the
latter class of case the employee may be able to call the Working Time
Regulations 1998 into issue to assert that all the hours on call are working
hours within the regulations, 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 of a
national minimum wage claim. He could only do so […] for such hours as he is awake
for the purpose of working […]’
12. We would venture for the purpose of the issues which arise
in the present case slightly to expand that summary …
1. there are cases where an employee is required during the
night to perform certain tasks or undertake certain responsibilities, such as
dealing with phone enquiries as in British Nursing Association v Inland
Revenue or undertaking the responsibilities of a night watchman as in Scottbridge
Construction Ltd v Wright. If that is the nature of the job the
employee is in truth working throughout the period in question even if actual
tasks only come up intermittently or infrequently and even if he or she is free
to sleep in the intervals between those tasks. In such cases paragraphs (1)
and (1A) of Regulations 15 and 16 do not come into play at all as explained in Burrow
Down Support Services v Mr E Rossiter. The role of paragraph (1) is to
deem the employee to be working in periods when he is in fact not working but
is required to be available to work.
2. In other cases the employee is not required to work but is
required to be at or near his place of work and available to work. Usual
shorthand for such cases is “on call” though that term is not used in the
Regulations. That is the kind of case where the employee is deemed to be
working by paragraph 1 of Regulations 15 and 16 but subject to, (a) the at home
exception in paragraph 1 itself and; (b) the sleeping facilities exception in
paragraph (1A). The distinction between the two classes of case may be
difficult to draw in some particular factual situations. The cases of night
sleepers in residential homes such as for under consideration in Burrow
Down and Mr A Smith v Oxfordshire Learning Disability Trust
[2009] ICR 1395 may be examples.”
36.
He then went on to say in paragraph 13 that the appellant in the case
before him was not in a position analogous to that of a night sleeper in a
residential care home who, “has a responsibility throughout the night for those
present in the home”. The very limited degree of responsibility which she had
was “different from the responsibility falling on a manager in a hotel or a
night sleeper in a home for the disabled”.
37.
The dichotomy between working cases and on call cases was, submitted Mr
Morgan, further recognised by Lady Smith in the case of City of Edinburgh
Council v Lauder & Ors upon which the Tribunal had heavily relied.
In paragraph 37 she accepted submissions which related to that dichotomy.
38.
It followed, submitted Mr Morgan, that the Tribunal here had simply
failed to deal with the appropriate authority, that of Rossiter,
had failed to recognise that on the evidence before them that the Claimant was
required to work and that Regulation 15(1) and 15(1A) were not applicable at
all, and that on a proper view of the authorities there could only be one
answer to her claim.
39.
So far as travel time was concerned he argued that the Tribunal had
simply paid no attention to asking whether here there was assignment work
within the meaning of Regulation 15(3)(b). If it had done so, it would have
concluded in favour of the Claimant.
40.
Thirdly he argued that the Judge was in error in accepting the
Respondent’s evidence that the sum of £760.42 was an overpayment against which
the sums due could be offset. He did so both for reasons of fact and reasons
of law. As a matter of fact not referred to by the Tribunal he argued that in
a letter of 23 May 2012 the Tribunal had accepted that the Claimant had worked
only 80.25 hours in her last four weeks being her notice period, that the
contract was 50 hours and it agreed to pay on the basis that there were 200
possible hours of work, leaving 119.75 hours to be paid. That, he said, was a
settlement of this argument before the Tribunal and it should not have been
open to the Respondents to rely upon a sum which they themselves had calculated
as actually being due to the Claimant.
41.
So far as the law was concerned, he submitted that the Employment
Rights Act provides specifically for pay during a period of notice. By
section 89 it is provided, following rights established by section 87, that if
an employee does not have normal working hours under the contract of employment
in force in the period of notice, the employer is liable to pay the employee
for each week of the period of notice a sum not less than week’s pay. The
parties accepted that Mrs Whittlestone did not have normal working hours. A
week’s pay is to be calculated in accordance with section 220 to 223. Where
there are normal working hours that remuneration is to be taken as an average over
the 12 preceding weeks. Mr Isherwood accepts that that is what the legislation
provides.
42.
Mr Morgan drew my attention to the schedule provided at page 83 of the
bundle by the Respondent to the Tribunal which showed that over the previous 12
weeks the Claimant had worked at least 50 hours per week on average. She had
worked a little more, but Mr Morgan on her behalf restricted her claim to 50
hours. He regards that as having been settled factually by agreement between
the parties, but legally he submits that the Claimant was entitled to be paid a
sum which represented remuneration for at least 50 hours per week during each
of the four weeks of her notice period. Mr Isherwood, he notes, has no answer
to that particular submission.
Mr Isherwood’s submissions
43.
Mr Isherwood focuses centrally upon the contract which the Claimant
made. Paragraph 5.5 of the decision was to the effect that there had been no physical
work actually done by the Claimant during the time that she was asleep. The Scottbridge
case had recognised by paragraph 8 of the Judgment of the Court of Session that
what was then the Regulation 15(1), provided that time spent asleep when
someone was permitted to sleep was not time work. The core element of the
Claimant’s work was the work she did during the day for the service users. It
was not the night sleepovers. The focus should be upon the core employment.
The Tribunal was correct to extract that proposition from the case law.
44.
As for travelling time the way in which the work was structured was in
separate shifts. Just as if a shift had been on one particular day with the
next shift the day following, time travelling from home to the start of a shift
and back again home afterwards would not count as working time, so too did it
not so count where there were separate shifts during the course of the day
rather than on successive days. Here the Tribunal had, he submitted, found
that each visit was a separate shift and that it had been entirely open to the
Claimant how she spent her time between one shift and the next. On occasions
she was able to return home had she wished. That was a matter for her, but was
relevant to whether the time spent moving from one service user to another
could be classed as travelling time. If she had used a car the travelling time
and the arrangements she made might have been very different.
45.
When it came to the question of the deduction he argued that here the
Tribunal factually recognised an overpayment. Accordingly its logic based on
section 14 of the Employment Rights Act 1996 was impeccable.
Discussion
46.
The case of South Manchester Abbeyfield Society v
Hopkins & Woodworth [2010] UKEAT/079/10 (a decision of 10 November
2010, HHJ Reid presiding) is one which is relied upon by Mr Isherwood. The
case involved the employment of a deputy housekeeper and housekeeper at
sheltered accommodation. The housekeeper worked hours which were between 8.30
am and 2.00 pm and 16.00 to 18.00 Mondays to Thursdays but was also required to
be on call in a flat provided to her from 9.00 pm until 8.00 am the following
morning each day.
47.
The Tribunal held that they were entitled to the minimum wage. The
Judge set out authorities which included authorities under the Working Time
Regulations as well as those to which I have already referred, and others, in
particular Anderson v Jarvis Hotels Plc and Hughes
v Graylyns Residential Home UKEAT/0159/08.
48.
He said at paragraph 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.”
49.
Therefore, the view of the facts which he took no doubt based upon
findings of fact of the Employment Tribunal, was that being present over the
nights concerned was not part of the individual’s job, certainly not part of
the core hours. He distinguished Rossiter and British
Nursing, Scottbridge, and MacCartney v Oversley
House Management [2006] UKEAT/0500/05/3101 where the appellant had
worked time defined as “four days per week of 24 hours site cover” and came
back to the essential factual finding with which he had to deal in paragraph
30. The contract in the case before him was, he considered one in which the
Respondents before him were required to work respectively 37 ½ hours and 16
hours per week but to be on call at night outside those hours.
50.
HHJ Reid QC drew a critical distinction between core hours and other time,
holding in paragraph 35 that the distinction between the case before him and Rossiter
was that in Rossiter the employee had no core hours other than
the two eight hour shifts he was required to be on site. Once it was 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 the
shifts whether or not he was in fact asleep.
51.
Secondly at paragraph 38 he founded himself upon 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 night watchman) whether or not provided with
sleeping accommodation and those where the employee is provided with sleeping
accommodation and is simply on call.”
52.
That was picked up by Lady Smith in City of Edinburgh and Lauder
to which I have already referred. She distinguished within the on call
category between those cases where the worker’s main job was separate from and
done at a time other than the on call period, and those when being “on call”
was part and parcel of it.
53.
I have no difficulty with the principle expressed by this Tribunal in
the South Manchester case that a distinction is to be drawn
between those people who by being present are doing the job they are employed
to do, and those for whom that is not the case. I do however have substantial
difficulty in accepting that there is a proper distinction to be made between
core hours and other hours in the contract. On reflection the point is
obvious. If a contract provides that hours are to be worked they could be
classified into core and non-core hours, but they would equally be working
hours. It cannot properly be said in a case where there are hours of work that
it is only those which are core hours which are to attract the protection of
the National Minimum Wage Regulations.
54.
Nor is it helpful to consider the Scottbridge case as if
the reason for Mr Wright being paid the national minimum wage and being treated
as doing time work was that that was the only work which he was employed to
do. It was indeed work he was employed to do: but if, suppose, he had had work
during the week to do as well, of a security nature, for his employers, to
regard his hours as a night watchman as being outside his core hours of work
and that they therefore should attract no minimum remuneration, whereas if
there were no core hours or other work they would do so, is to draw a
distinction which does not appear in the regulations nor the legislation. The
issue is not whether work is done within “core hours” or not; that expression
does not appear in the regulations.
55.
There is a danger, as it seems to me, in the use of concepts such as “on
call” or “core hours”. They are liable to be misleading if they are used as
tools of analysis rather than as handy descriptions of the circumstances of a
particular case. The expressions were used in the original cases, Scottbridge,
and British Nursing Association as handy descriptions. They
are not terms which come from the statute. But the jurisdiction is entirely statutory.
A decision of a Tribunal is not to be made by taking an epithet and applying it
in analysis in a way which was never intended. The job of the Tribunal is to apply
the law. Those expressions do not arise from statute. The only distinction in
statute, as the cases demonstrate, is between that which is time work and that
which is not but which might be deemed to be.
56.
Secondly, the danger of the expression “core hours” like terms is that applying
them might involve an investigation as to what work is actually done and an
impermissible focus upon the level of physical or mental activity. That is not
the issue. The issue, as the Lord President demonstrated in Scottbridge,
is whether it is properly to be regarded as time work in the first place or
not. The question is a factual enquiry. The first question for any Tribunal
is, “is the claimant working during the hours for which he claims?” If he is
not, then Regulation 15 might apply.
57.
Work is to be determined upon a realistic appraisal of the circumstances
in the light of the contract and the context within which it is made. So
viewed, the distinctions which I drew earlier in this judgment may be helpful. But
I emphasise they are intended to be helpful, and not words which should incline
a Tribunal to repeat the error into which in my view this Tribunal fell in
concentrating upon the question of core hours or the opposite when what
mattered was asking whether what was done was work.
58.
In the circumstances of this particular case there could, in my view,
have been no answer other than that it was work, and this, being a time work
contract, was time work. That is because the evidence was that there had been
agreement between the employer and the Claimant that she would work; she would
have been disciplined if she had not been present throughout the period of time;
she could not for instance slip out for a late night movie or for fish and
chips.
59.
The fact that her physical services were not called upon during the
night were on the basis I have expressed irrelevant since her job was to be
there. This is a case which in principle is on all fours with that of Rossiter.
The case of Anderson v Jarvis demonstrates the same
approach in a different factual context; that was of 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 his being required to do so was
to cover emergencies such as fire or flood. The Tribunal found that he was not
entitled to be paid, but the Appeal Tribunal reversed that decision: it was
plainly wrong to say that he was not at the Respondent’s disposal during
sleepovers given that the Respondents required him to be in their premises
during those periods for a stated purpose; he was clearly working. The same
reasoning applies here.
60.
Accordingly, the first ground of appeal succeeds.
61.
I turn to the second. The Tribunal simply did not deal with the question
of assignments. Travelling time is time work, except where incidental to the
duties being carried out and the time work is not assignment work. It is clear
that if the work which the Claimant was doing was properly to be regarded on
the facts as “assignment work” the travelling time which she spent should have
been remunerated. Here the general principle must be that for someone working
the hours as indicated on the Respondent’s schedule, to which I have already
referred, the fact that the contract called each separate visit a “shift” does
not have the consequence that this was the same arrangement as if the Claimant
had been starting work at her employer’s premises at the start of an 8 hour
shift or thereabouts and returning home after. She was on the rota and obliged
to visit each service user in turn during the course of the day, and there inevitably
was travelling time between them.
62.
That time was within the general control of the employer who was
arranging the assignments. The finding seems inescapable in the present case
that with the exception of those periods, none of which were clearly identified
in the decision, when the Claimant might have had so long between the end of
one assignment and the next as to return home, such that the time would not be
travelling time because it would be removed by Regulation 15(2)(b) from consideration,
the work would be assignment work. It could be nothing else within a common
sense meaning of the word “assignment”.
63.
Accordingly, in my view not only was the Employment Judge wrong by
failing to apply the law to which he had directed himself appropriately, but the
conclusion to which he came was wrong. The opposite conclusion was that to
which he should have come, subject only to any argument that on occasions for
which a claim was to be made the Claimant might not be doing time work because
she had gone home or was travelling from home to the assignment.
64.
The third ground of appeal also succeeds. It succeeds upon the basis
set out in Mr Morgan’s submissions about which I need say no more. The
Tribunal was wrong in overlooking the impact of section 89.
65.
I should finally say this. The Tribunal did not here have the
assistance of two qualified lawyers. That may be why it fell into error. This
is not intended to be any disrespect to either Mr Morgan or to Mr Isherwood. But
the application of time work and the National Minimum Wage Regulations has
proved factually and legally problematic for Tribunals in the past. I hope
that, with these few additional words of mine, future occasions will be rarer.
66.
The consequence is that on each of the grounds, save only that in
respect of sleeping accommodation for the reasons I have given, the appeal is
allowed. A finding will be substituted that the Claimant was entitled to have
the time she spent doing sleepovers included in the overall calculation of the
national minimum wage. That is not a calculation which I can perform because
it involves considering the pay which she received for her other hours of work
which was in excess of the national minimum wage and striking the appropriate
balance. The time spent travelling too is a matter of computation and
argument.
67.
I recommend to the parties that they conciliate and mediate the remaining
differences between them which are essentially financial.
