Appeal No. EAT/1387/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MR D A C LAMBERT
MR P A L PARKER CBE

THE BRITISH NURSING ASSOCIATION	APPELLANT

THE INLAND REVENUE 	RESPONDENT
(NATIONAL MINIMUM WAGE COMPLIANCE TEAM)	

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR EPSTEIN
Bates Wells & Braithwaite
Solicitors
Cheapside House
138 Cheapside
London
EC2V 6BB	
For the Respondent	MR HOSKINS
Inland Revenue Solicitors	

JUDGE ALTMAN

1.	This is an appeal from the decision of the Employment Tribunal sitting at Southampton on 7 September 2000 in which they held that the employees of the Appellants were workers engaged in time work at times when they are awake and awaiting calls at home, in accordance with Regulation 15(1) of the National Minimum Wage Regulations 1999.  Those regulations have since been amended but we have been concerned only with the unamended Regulations.

2.	Regulation 15(1) is one of the Regulations which provides the way in which to calculate those hours to which the National Minimum Wage requirements apply, for the benefit of employees, and it concerns a form of work described as “time work”.  It is agreed in this case that the employees of the Appellants were engaged at the material time in “time work”.  Regulation 15(1) provides that:

(1)	In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be permitted as being time work when the worker is awake for the purpose of working.

3.	The Employment Tribunal set out a summary of an agreed schedule of facts as the factual basis upon which to base their decision.  We will append to this judgement the full text of the schedule of agreed facts.

4.	Essentially the Appellants were found to be a national organisation which provides nurses from a bank for nursing in homes and other institutions on an emergency basis.  Part of their work, therefore, is a booking service, which is provided 24 hours a day.  During the day time it appears that it is operated by employees working at the premises of the Appellants but during night time hours the work is transferred to employees who work from home.  Those staff are all qualified.
5.	The booking process involves the ‘duty nurse’, (the member of staff) answering a diverted phone call at her home and then responding to the request for nursing staff, presumably by further phone calls to identify the person who is to do the work.  In addition, the Employment Tribunal found that they may give some advice, as being qualified nurses to a limited extent, but we are told that that does not form part of the agreed facts and we have ignored it.

6.	In order to qualify for the application of the National Minimum Wage and to ascertain the extent to which employees qualify, it is necessary therefore to work out the hours of work that are subject to the requirements of the Regulations.

7.	The first words of Regulation 15(1) make it clear that the starting point is the time when a worker is working and goes on to provide that other periods of time, when the worker is not actually working, may be regarded in effect as working hours for the purpose of the Regulations.  Accordingly, the task of the Tribunal was to identify, in principle, how to approach in this case the calculation of the time when a worker is working; either simpliciter or by addition of the hours when they are not ordinarily working, but are to be deemed to be working for the purpose of the Regulations.

8.	The starting point, therefore, is to ask when a worker is working.  The Employment Tribunal found as follows in paragraph 26:

26.	“In this case the workers are employed to answer the telephone, to assign bank nurses and, to a limited extent, to give advice.  It is a 24-hour service.  During the extended day, this service is provided from offices around the country.  During the night, broadly 8.00pm to 9.00am, it is from the homes of the workers who are subject of this notice.  It is a seamless service.  In other words, the Client does not know the location of the person who is answering the phone.”
27.	We therefore find that these workers are “working” through the nightshift answering the Clients’ telephone calls and there is, therefore, no difference between the day workers and the night workers, except that night workers work from home.”
9.	Other features that have emerged during the course of the submissions that have been helpfully addressed to us and by reference to other material, is that the employees were in receipt of a regular payment for their nightshift working.  It may be that that payment was originally fixed by reference to a notional number of hours during which the telephone may actually have been answered but it was not calculated from week to week by reference to any such specific activity in a particular case.

10.	There was some provision, so it seems, for calculating when work was being carried out during the night shift and when it was not, but we are uncertain of the way in which that was done.  There was no specific formula for identifying the beginning and end of a piece of work during the night, such as going to answer the telephone and putting the receiver down and ringing someone else, or anything of that kind, but there was an obligation to be available to answer the telephone at home.

11.	The arguments that are presented on behalf of the Appellants have been set out in the skeleton argument and we have been helpfully referred to the background to the legislation in this case.  It is contended that the Employment Tribunal were perverse in concluding that the employees of the Appellants were working.  Reference is made to the fact that although staff were required to be available to deal with telephone calls, they were able to spend part of their shifts asleep or doing other activities, for example watching television, and that it was infrequent for calls to be received between 11.30pm and 5.30am.  Average calculations were produced to demonstrate the low percentage of total shift time spent “actually working” in relation to Portsmouth staff.

12.	The Employment Tribunal’s decision is criticised on the ground that the Employment Tribunal considered in paragraph 26 what it was that the work force was employed to do by way of the service that it provided but did not consider the actual work being done.  Criticism was made of the analogy taken from the guidance that was produced to accompany these Regulations of a chauffeur waiting at his employer’s office to start a driving job.  It is suggested that the guidance was expressly referring to “on-call” time.

13.	There is some substance, it seems to us, in criticising the precise way in which the Employment Tribunal constructed its decision.  It is true that they did not spell out in paragraph 26 the actual ingredients of the job and the way the job was done by particular employees.

14.	We consider that it is being an unduly restrictive interpretation of their decision to assume that the word ‘therefore’ in paragraph 27, which we have quoted, refers simply to the preceding paragraph, for after all, the whole of the decision up until paragraph 27 contains a detailed analysis of the agreed facts, the statutory provisions, the description of work in paragraph 26, and paragraph 27 is their concluding paragraph.  It is quite clear to us that the word ‘therefore’ refers to all that went before.

15.	We were referred to a case which is helpfully referred to by an abbreviation of Simap in the European Court of Justice reported at [2000] IRLR 845, which dealt with the position of doctors on call, in which it was held at paragraph 52:

“The time spent on calls by doctors in primary health care teams must be regarded in its entirety as working time and where appropriate overtime, within the meaning of directive 93/104, if they are required to be at the health centre.  If they must merely be contactable at all times when on call, only time linked to the actual provision of primary care services must be regarded as working time.”

16.	It is the argument of the Appellants that a correct construction in this case dictates that where a worker is employed at home, it is unrealistic to suggest that merely because he is available to do the tasks to which he has been assigned by his employers, that that is being at work; whereas, of course, they say, when he has presented himself at his employer’s premises, even though he may find some way of filling the time – by reading or doing something that is not work-specific – he is regarded as being at work.

17.	We have some sympathy for that argument.  It does seem to us that there is a qualitative difference between doing assigned tasks whilst at home and doing assigned tasks whilst at work.  The more that we have listened to the arguments in this case, and the analogies and illustrations that everyone in this Tribunal has sought to produce, as the case has proceeded, we are driven to the conclusion that the correct approach in this case is not one of establishing principles or establishing general rules or categories of work, by the application of clichéd titles or descriptions.

18.	For instance, we are not assisted by the simple use of the term “on call” because sometimes a person may be on call, unable to do other things and clearly tied to his work, whereas another person may simply be on call, which means that he or she must be contactable by telephone to see if he or she is available to go and do a piece of work.

19.	We have come to the conclusion, on all the evidence and argument that we have heard, that the essential task of a Tribunal, or indeed the Respondents in seeking to apply these regulations, or an employer in seeking to adhere to them, is to look at the ingredients of the particular case and the type of work that is involved, and the different elements to see if they can properly be described as work.

20.	We glean from this particular case that the type of thing that may be looked at is first the nature of the work in its substance.  Secondly there is the extent to which, where the employee is not, for instance, actually answering the telephone, his or her activities are restricted on the one hand or completely unrestrained on the other.

21.	Thirdly, the way in which the parties approach their mutual obligations and the way in which remuneration is calculated are not, it seems to us, conclusive.  However, in a case such as this, where pay is calculated by reference to a shift, it seems to us that that provides some illustration of the nature of the obligation for which remuneration is being made.  After all, it is not to be expected that employers will pay employees for periods of time when their employees are not working.

22.	Fourthly, indeed, and bearing in mind that ascertaining what is work is part of a process, required to be gone through in order to calculate mathematically a number of hours to which the minimum wage requirements apply, it seems to us that one of the guiding principles would be the extent to which the period during which work is performed is readily ascertainable in its form.

23.	In this particular case it seems to us that, whilst working at home, the employee is not, as with some home work, available to pick and choose the periods of time during the night when he or she will answer the telephone.  There is a continuing obligation throughout the night, it seems to us, to be available, and that the person is holding himself or herself ready to answer the telephone in this context, is an important element in considering what is work.

24.	The variable nature of the number of telephone calls, wholly unrelated to the pay that is involved, also tends, it seems to us, to dissociate the actual periods of answering the telephone from the measurement of the hours of work.

25.	We have come to the conclusion that in this particular case the Employment Tribunal were entitled to conclude, on the facts they found, that the employees of the Appellants were working.  It seems to us in this case that to extract from the night time hours those few minutes or hours when each phone call takes place and say that that is work but that the rest is not, is really only selecting one type of work in preference to another, by reference to the degree of concentration that is required upon it.  There is, it seems to us, in the context of the facts in this case, only a difference of degree between holding oneself ready and obliged to answer the telephone and actually doing so.

26.	We find that on the basis of the facts they found, the Employment Tribunal were entitled to conclude as they did, but we do not endorse their finding that there is no difference between the day workers and the night workers, for we do not know the factual content of the work of the day workers.  We recognise that this conclusion may, in its practical application, not in reality fulfil the real purpose of the legislation, and may indeed be counter-productive.  But that, it seems to us, is a matter for those who consider the content of the Regulations, not for the interpretation of the Court.

27.	We have then gone on to consider, in any event, whether the time work includes time when a worker is available at a place of work for the purpose of doing time work, if in the event we are wrong in our interpretation on the first matter.  The Respondents have left open, as it were, for us to consider the argument that in any event the Regulations do not exclude workers at home from that additional provision but only those that are near a place of work.
28.	It seems to us that the Regulations are designed specifically to exclude home workers from work additional to actual working.  The phrase in the Regulations is:

“…time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work”

One need not, it seems to us, go beyond a literal interpretation of those Regulations.  The phrase “at or near” is a self-contained phrase which qualifies a place of work and no distinction is drawn in the Regulations, therefore, between their provisions as they effect the place of work or being near a place of work.

29.	Furthermore, where provision is made for “other than his home”, that is separated from the proceeding clause by a comma and qualifies the whole of it.  Furthermore, it is immediately preceded by the words “a place of work” and therefore is qualifying a place of work.  The Regulations have, therefore, in mind a place of work other than the home and the fact that the phrase “at or near” precedes a place of work, it seems to us prevents any logical grammatical construction distinguishing the provisions “other than a home”, between being “at” or “near” such a place of work.

30.	It is quite clear to us that the purpose of those Regulations is to exclude home work from those notional types of work that are in addition to actual working.  One can understand the reasoning behind that; home work is a difficult area to fit into these Regulations, particularly when one is trying to say what is notional and what is not. Accordingly it has been excluded from notional work and only included in actual work.  It is the definition of what is actual work on the facts of this case that has been the major exercise.

31.	We have come to the conclusion that there is no general principle to apply to home work in defining whether or not a worker is working or to establish any general rule or principle that must be applied in the process of interpretation.  Some hours of home work may not be home working.  If someone has to produce a certain number of items of work in a week, at a time of choosing, without obligation, we could well understand the decision may be different.

32.	The task of a Tribunal is to look at the facts and to draw inferences and conclusions from them in a particular case.  We find there is no error of law in the way in which this was done in this case and accordingly the appeal is dismissed.