The Employment Appeals Tribunal heard the case of Whittlestone which looked again at the thorny issue of “core and on call hours.” Below I have summarised the case and included observations on the relevant case-law as well as providing observations that employers consider.
Mrs Whittlestone (see citations for case details) was employed by BJP to provide care services to clients [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.”
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.
The contract, also 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.”
An Employment Tribunal dismissed a claim to be paid National Minimum Wage (a) for time during which the Claimant was sleeping (“sleepovers”, as required by her contract) in the home of 3 service users to whom she might have to attend (although, as things turned out, she did not do so in fact); (b) for time spent travelling during the day between an assignment to care for one service user and the next assignment to care for another; and (c) set off against the Claimant’s otherwise justifiable claims an overpayment of wages said to have occurred. It also held that the sleeping arrangements provided for the Claimant in relation to her “sleepovers”.
On appeal it was held by the EAT that the Tribunal was in error in respect of each of each. The Tribunal failed to:
- apply the appropriate authority, that of Burrow Down Support Services Ltd v Rossiter,
- recognise that on the evidence before it that the Claimant was required to work, that this was and could only in the circumstances be “time work”, such that Regulation 15(1) and 15(1A) were not applicable at all, and that it was irrelevant whether any activity was actually performed.
- deal with whether the Claimant was travelling between assignments: on the facts, there was only one answer to this, which favoured the Claimant. As to (c) the Tribunal had overlooked s.89 of the Employment Rights Act, on the basis of which there was no overpayment.
In the circumstances of this particular case there could 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.”
Quick reference to cases
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.
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.”
Hopkins & Woodworth (a decision of 10 November 2010, HHJ Reid presiding) is one often relied upon. 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.
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.
In the case of 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.
“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.”
“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.’”
There is a danger 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 law on this area is entirely statutory. 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.
“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.”
Relevant areas of legislation
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 – 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.”
Regulation 15 makes provisions in relation to time work. Those provisions insofar as material tothe 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.”
Scottbridge Construction Ltd v Wright  IRLR 21
Burrow Down Support Services Ltd v Rossiter  ICR 1172,