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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Lynch v. Bromley Arts Council [2007] UKEAT 0390_06_1302 (13 February 2007) URL: http://www.bailii.org/uk/cases/UKEAT/2007/0390_06_1302.html Cite as: [2007] UKEAT 0390_06_1302, [2007] UKEAT 390_6_1302

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APPEARANCES

 

For the Appellant	Represented by his son Mr T Kean as lay advocate
For the Respondent	Mr K L F Knight (of Counsel) Instructed by: Messrs Thackray Williams Solicitors Kings House 32-40 Widmore Road Bromley BR1 1RY


 


Summary

National minimum wage – Working time regulations

The Claimant was employed as Warden of the Respondent's Arts Centre. He and his wife, who also worked for the Respondent were required to live in a flat at the Arts centre. His case before the Employment Tribunal was that he actually worked well over 48 hours per week and was required to do so. The Employment Tribunal rejected his case on the facts. The premise on which his appeal was based was that he was 'on call' for many hours and that time on call should be treated as working time for the purposes of the Working Time Regulations. That case was contrary to that put before the Employment Tribunal and was inconsistent with its findings of fact. The Claimant was in effect trying to construct a case on all fours with Maccartney v Oversley House Management UKEAT/0500/05, but was bound by the findings of the Employment Tribunal and could not rely upon material that was not placed before it to justify the new case.


 


HIS HONOUR JUDGE SEROTA QC

Introduction

1. This is an appeal from a decision of the Employment Tribunal at Ashford (A Freer Esq Chairman) dated 10 May 2006. The Employment Tribunal considered a number of claims by Mr Lynch and his wife Mrs Lynch (who does not appeal). The Employment Tribunal decided as follows.

i) Mr Lynch's claim that the Respondent had failed to provide him with daily rest breaks in accordance with regulation 10 of the Working Time Regulations 1998 was well founded and he was awarded compensation in the sum of £800.

(ii) The Employment Tribunal found that the following claims were not well founded and these were dismissed (a) unauthorised deduction from wages (b) failure to pay minimum wage (c) failure to provide weekly rest breaks (d) failure to provide itemised pay statements contrary to section 8 of the Employment Rights Act 1996.

(iii) The Employment Tribunal rejected Mr Lynch's claim that he had been required to work in excess of 48 hours per week in breach of Regulation 4(1) of the Working Time Regulations because it had no jurisdiction.

2. The Employment Tribunal went on to dismiss a number of claims by Mrs Lynch in relation to unauthorised deductions, failure to pay minimum wage and failure to provide itemised pay statements. We need not concern ourselves with these because she has not appealed.
3. Mr Lynch's appeal was referred to a full hearing by HHJ Clark on 13 July 2006. Mr Lynch made an application that the Chairman should supply notes of evidence. The Chairman was invited to provide his notes and responded on 10 November 2006. An application was made by Mr Lynch for permission to adduce fresh evidence. We have not seen the relevant documentation but we understand that the application was dismissed by the Registrar on 22 November 2006 and there has been no appeal against that decision. At the hearing before the Employment Tribunal the Claimant was represented by Mr Mark Afeeva of Counsel. The Notice of Appeal may have been drafted by Mr Afeeva, although it is signed by Mr Lynch himself. Mr Lynch explained to us that he had insufficient funds for legal assistance before the Employment Appeal Tribunal and his case has been conducted on his behalf by his son Mr Kean.

Factual background

4. The Respondent is a registered charity and has operated since 1965 with the aim of representing local amateur arts associations in the London Borough of Bromley.
5. It operates from Ripley House (a private house built in about 1899) which is used as an arts centre. There are some 6 rooms available for letting in Ripley House of different sizes.
6. Mr and Mrs Lynch were first employed on 2 June 1997. Mr Lynch initially held the title of caretaker but after an initial period he was designated as the "warden". Mrs Lynch was employed as a cleaner.
7. Mr Lynch's contract of employment is dated 5 November 1997. The following are among the material terms of the contract of employment:-

(i) Mr Lynch was required to live in the caretakers flat rent free but unfurnished and was entitled to reasonable use of gas and electricity. The flat was situated in Ripley House.

(ii) Hours of Work

You are required to work five days per week during such hours as the business of 'Ripley' requires. You will not have to work on Sundays and Mondays. You will be required to work at least 40 hours per week, which will include periods of fifteen minutes before and after the start and end of all room lettings and to be 'on call' at other times between 9am and 10.45pm if possible.

(iii) Caretaker's Duties

Your duties are as required for the day-to-day management of 'Ripley' in respect of:-

(a) Services to the public and hirers of rooms

(b) Safety

(c) Cleanliness and tidiness of the building and grounds

(d) Security

(e) Ensuring that hirers obey the House Rules

(f) Conformance to COSSH regulations

You are required to ensure that the conditions relating to fire and other licensing regulations to which the Arts Council have entered into are continuously observed.

The duties are detailed in the document 'Caretaker Duties' annex 1, modified from time to time as may be mutually agreed and confirmed by the Ripley Committee.

8. Mr Lynch's salary was increased from time to time, generally annually. It will be noted that the contract contains no express provision relating to overtime or overtime pay.
9. It was subsequently agreed that the Claimant would work on Sundays if there had been a wedding on the previous Saturday.
10. The Employment Tribunal found that the claimant would take time away from work, for example, at lunch times, and would take Mrs Lynch to her other job. He would also leave the premises during the working day in order to have a haircut. He was not away for much more that an hour at a time. He always took four weeks annual leave.
11. From October 1998 Mr Lynch appears to have been paid overtime. He was initially paid overtime for work undertaken on Monday nights but when Mr Lynch was designated as Duty Manager (see paragraph 13), the Employment Tribunal at paragraph 32 found that Mr Lynch considered overtime became payable after 7pm on his normal working days of Tuesday to Saturday "based solely on his perception of how employees are paid overtime in other jobs."
12. A procedure developed whereby the Claimant would submit a claim for overtime to the Respondent setting out the number of hours he had worked for which he claimed overtime and the relevant dates. The Respondent would then pay. There was no verification of these hours and the Respondent relied on Mr Lynch's account. The hourly rate paid for overtime increased from time to time. Mr Lynch also became entitled to additional payments in relation to weddings and certain other functions and was also paid at least initially a Christmas bonus.
13. By September 2000 the subsidy that was paid by the London Borough of Bromley to the Respondent was under review and there was a need for the Respondent to generate more income. It began to allow wedding receptions to be held at Ripley House and the first was held in September or October 2000. Mr Lynch was paid a fee for each such reception together with an hourly rate for those extending into the evening. Further, as a result of new concert management procedures Mr Lynch was to be paid overtime for acting as Duty Manager. There was one wedding in 2000, eight in 2002, five in 2003, thirteen in 2004 and as many as 27 in 2005. However these were held on a seasonal basis and were not evenly distributed throughout the year. The number of courses and concerts occupying rooms at Ripley House also increased. The Employment Tribunal was satisfied that the Respondent was aware of usage levels.
14. The Employment Tribunal was satisfied that until 2001 Mr Lynch worked comfortably within his contractual obligations but thereafter his hours gradually increased. In January 2003 after a change in insurance requirements it was necessary for the property to be searched after every function to ensure there were no smoking or smouldering materials on site. Mr Lynch was designated as the responsible person when he was available. Thereafter when locking up Mr Lynch would undertake the appropriate search.
15. In the Spring of 2004 the Respondent hired a gardener who undertook work previously undertaken by the Claimant (there was no evidence as to the hours worked by the gardener) and cleaning assistance was made available on Sundays and Mondays. A pottery at Ripley House was closed. Thus Mr Lynch was relieved of certain duties. However, also in 2004 a new extension to Ripley House which extended its capacity and the number of rooms available for hire, was opened.
16. The Employment Tribunal was satisfied that Mr Lynch had made complaints about his workload and had been asked to put them in writing. He did not do so until 10 November 2004 when he complained about the weddings and the increased work level they brought. The Respondent offered Mr Lynch regular management meetings to discuss his workload but he never took up the offer.
17. On 18 March 2005 solicitors acting for Mr and Mrs Lynch, Messrs Christian Khan, wrote to the Respondent to the effect that they wished to raise a formal grievance and complaint in relation to his overtime. It was claimed that Mr Lynch "routinely works" between 8am to 5pm plus an average of 5 ¾ hours in the evenings during his working week. There was a complaint about being caused disturbance in his flat by noise from revellers. There is no reference in the letter to the case now made that Mr Lynch was in effect on duty while he was at home, or that he had to use his home as a place of work. The grievance meeting was arranged for 28 April 2005. Mrs Gallico and Mr Gibbs, who have great experience in these matters, tell me it is unusual for a solicitor to participate in grievance procedures. It is not regarded as good practice and many employers would have refused to permit solicitors to participate in grievance procedures.
18. The Respondent in a letter of 6 May 2002 wrote, inter alia, as follows:-

"We will pay for hours you work in excess of 40 in any week, if you claim them and show that they have been worked, as we have always done. If you wish to claim now for further overtime worked in the past we are willing to consider this, but it will be difficult to arrive at a fair conclusion in the absence of any records other than the monthly claims you have already submitted."

The letter continued:-

"4 We shall be happy to consider with you one of a number of options for your working arrangements:

• A four-day working week of 40 hours plus agreed overtime within the Working Time Regulations 1998, with others responsible for all other times

• A part-time assistant

• You may wish to waive your right to the 48 hour rule.

Alternatively we will consider any suggestion you may wish to put forward yourself."

19. Mr Lynch now maintains that this letter was an "admission" that he worked in excess of 40 hours per week and was not getting paid for it. Mr Lynch also maintains that this letter was the first opportunity he had had to put in a claim for overtime outside Monday evenings and Saturdays.
20. On 24 August 2005 Mr Lynch's solicitors wrote to the Respondent again. In this letter it is asserted that Mr Lynch worked between Tuesdays and Saturdays from 8am to 10.45pm together with additional overtime on Sundays and Mondays and during the week. Mr and Mrs Lynch did not wish to appeal in relation to the grievance but to claim overtime. It was asserted that Mr Lynch had worked some 7770 hours of overtime based on a continuous and uninterrupted working pattern of 5 ¾ hours per night during the working week. The Respondent says this means that he would have been working 13 ¾ hours every working day since 1 January 2001, a point confirmed by the Claimant in his witness statement. The letter goes on to say that Mr Lynch was willing to work a 40 hour week but on the basis there should be substantial agreed overtime of some 20 hours per week in addition to a 4 day week together with a provision of an assistant before and during all functions. The Respondent, it was proposed should also find someone to be on the premises with the responsibility for management outside the agreed hours.
21. On 16 September 200 Mr Lynch presented his claim form. In the claim form he asserts that as at 31 July 2005 he has worked 7770 overtime hours since 1 January 2001 only 929 ½ of which have been paid for. He therefore had a claim in respect of some 6800 hours of overtime, and claimed a sum in excess of £30,000.
22. On 20 September 2005 the Claimant presented an overtime claim for the period 6 to 20 September. He claims to have been working a constant period between Tuesday and Saturday from 8am to 10.45pm with additional time on Saturdays, Sundays and Mondays and some occasions an additional 3 hours during his normal working week: for example on Wednesday September 7 2005 he claimed he had not only worked from 8 to 10.45 but an additional 2 hours while he was duty manager.
23. An appeal hearing took place on 29 September 2005 but the appeal was dismissed on 17 October 2005. Mr Lynch maintains that the dismissal of his appeal shows the Respondent "grossly" did not take his complaint seriously. On 23 January 2006 the hearing before the Employment Tribunal began. The Employment Tribunal reserved its decision on 22 February. At that time Mr and Mrs Lynch were still working at Ripley House. The Employment Tribunal considered that this was still the case when it delivered its decision on 10 May 2005 and recorded (in the hope that the parties could resolve their differences by conciliation or mediation) that the Respondent had no concerns about the work of Mr and Mrs Lynch and the concern of Mr and Mrs Lynch was that additional work caused changes in their life, once Ripley House had begun to be used for weddings. This was their concern rather than pay.
24. In fact, however, on 18 March 2006 Mr Lynch claimed that as the Respondent had failed to address the claims to his satisfaction the necessary trust and confidence between Mr and Mrs Lynch and the Respondent had been broken and they resigned claiming constructive dismissal. We understand that those proceedings have been stayed pending this appeal.
25. We understand that Mr Lynch applied for a review of the decision of the Employment Tribunal (which is as we have said is dated 10 May 2006). The application for the review was, we understand, dismissed but we have no details and have not seen any decision. The Notice of Appeal dated 19 June 2006 appears to incorporate the application for review.

The decision of the Employment Tribunal

26. The case put before the Employment Tribunal was principally that the use of Ripley House increased and resulted in the situation whereby it was impossible for Mr and Mrs Lynch to perform their duties without substantial and daily overtime which in fact they did work, as opposed to simply being on call. Mr Lynch had actually worked every working day since 1 January 2001 approximately 13 ¾ hours.
27. The Employment Tribunal identified five specific issues with the parties (both of whom were legally represented at that stage) as follows:-

"7. The issues agreed with the parties at the outset of the hearing were:

• Whether the Claimants were paid an hourly rate at a level equal to or exceeding the national minimum wage, having regard to their total gross pay, less deductions and other payments that do not count towards the national minimum wage, and amounts permitted to be taken into account for living accommodation.

• Whether the Claimants received wages properly payable having regard to the national minimum wage, overtime worked, their correct contractual rate of pay and deductions in respect of accommodation charges. If not, the amount of the deduction.

• Whether the Claimants received their correct pay in respect of periods of annual leave pursuant to the Working Time Regulations 1998. If not, the amount of the shortfall.

• Whether the First Claimant received his entitlement to rest breaks pursuant to the appropriate regulation of the Working Time Regulations 1998. If not, the level of compensation that it is just and equitable to award having regard to the employer's default and the loss sustained by the Claimants that is attributable to the complaint.

• Whether the First Claimant worked in excess of the working time maximum weekly hours.

• Whether the Claimants received written and property itemised pay statements in accordance with section 8 of the Employment Rights Act 1996.

28. The Employment Tribunal had before it an appendix to the witness statement of Mr Curtis, the Honorary Secretary of the Respondent which the Employment Tribunal considered to be an accurate reflection of the overtime pay claimed by Mr Lynch and paid by the Respondent.
29. At paragraph 65 and 66 the Employment Tribunal correctly directed itself by reference to section 13(1) and 13(3) of the Employment Rights Act 1996: see paragraphs 64 to 66.
30. The Employment Tribunal then went on to consider the law relating to the national minimum wage. In particular it had regard to the relevant regulations relating to method of determining national minimum wage, and calculation of hours (regulations 11 and 14). It then went on to refer itself to "salaried hours work" and considered regulations 4(1), 4(2), 4(3b) as well as "time work" referred to in regulation 3 and "unmeasured work" covered by regulation 6. It then went on to consider regulations 15(1) 16(1) which include time when a worker was available at or near a place of work for the purpose of doing salaried work or timed work and was required to be available for such work. It also considered regulations 30(d) and 36 and considered the effect of the provision of living accommodation on remuneration as counting towards a national minimum wage.
31. The Employment Tribunal then went on to consider the Working Time Regulations in relation to working periods, rest periods, agreement to working in excess of 48 hours per week. At paragraph 80 it had this to say:-

"The limit set by the regulation such as the 48 hour week, is enforced by the Health and Safety Executive or rather appropriate body. Rights forwarded by the regulations can be enforced at an Employment Tribunal by virtue of regulation 30."

32. The Employment Tribunal went on to consider the case of Sindicato de Medicos de Asistencia Publica v Conselleria de Sanidad y Consumo de la Generalida Valenciane [2000] IRLR 845 (for the sake of convenience the Employment Tribunal referred to this case and we will refer to it also as the "Simap" case. This was the only authority referred to by the Employment Tribunal.
33. We now turn to consider the conclusions of the Employment Tribunal. The first matter considered by the Employment Tribunal was the claim in respect of unauthorised deductions. It will be recalled that the Claimant's claim was that since January 2001 he had worked from 8am to 10.45pm for every working day. The Employment Tribunal considered (see paragraph 107) that this claim was "not credible" it noted that Mr Lynch had time out from work for lunch, taking his wife to her second job for haircuts and so forth. He did not work during all the times claimed and no account was taken in his claim of any such breaks. The Employment Tribunal continued:-

"107. However, most importantly, having regard to all the evidence, including the extracts from the Respondent's Bookings Ledger for 1999 and 2005 and the details of usage provided by the Respondent, the Tribunal does not accept that the Claimant did work every day from 8.00am to 10.45pm from January 2001 to 31 July 2005, particularly during the earlier years of that period. As this is a Wages Act claim, the burden of proof is upon the Claimant and the remedy is calculated with regard to the precise amount of the deduction. The Tribunal cannot speculate over what hours the Claimant did work and in respect of what periods in the absence of the Tribunal's acceptance of the Claimant's only and general proposition of hours worked.

108. Further, overtime hours were claimed by the Claimant during the period in question and he received the proper payment in respect of those claims. The parties operated a time sheet process for the calculation and payment of overtime and it was the intention of the parties when the payment of overtime was agreed that payment would be calculated in this way. It is the Tribunal's conclusion that those hours claimed by the Claimant upon the submission of his time sheets were the amounts that were properly payable. It was the amount required to be paid by the Respondent under a contractually agreed administrative process for payment."

34. The Employment Tribunal continued at paragraph 109 to conclude that Mr Lynch was not "required to work extra hours by reason of the terms of his contract of employment":-

"110. The Claimant was only required to be on-call "if possible" subject to the minimum requirement of 40 hours work per week. In accordance with his contract of employment, the Claimant was left largely to his own devices to schedule his work as he considered appropriate subject to the requirement to work a forty-hour week and to work for periods of fifteen minutes before and after the start and end of all room lettings. The Claimant was to be 'on call' at other times between 9am and 10,45pm, if possible, to at least bring his work hours up to forty. The Tribunal considers on a balance of probabilities that there were no instances when the Claimant was expressly required by the Respondent to be 'on-call' outside him working a forty-hour week. It was the Claimant's choice to work overtime hours and for which he did not claim overtime pay. The Tribunal accepts that the Claimant felt obliged to work overtime hours on occasion because of his diligence and sense of duty towards the Respondent. As the Claimant argued "the work was there to be done". However, there was no contractual requirement for him to work any overtime hours and moreover, no contractual requirement upon the Respondent to pay the Claimant for those hours worked in the absence of any claim for overtime by him. An analogy is with an office worker who is contracted to work a forty-hour week with no contractual provision for the payment of overtime. That employee may feel obliged to work longer hours because work is there to be done (and a great many people could work a twenty-four hour day on that basis), but that person would have no contractual right to claim for any additional pay if they did so. There are numerous routes available to an employee who considers that they have no choice but to work unpaid additional hours in order to do the work expected of them, such as to raise it with their employer, either informally or as a grievance and if the situation amounts to a fundamental breach of contract, claim constructive unfair dismissal."

35. The Employment Tribunal went on to find that its considerations at paragraph 110 applied equally in respect of hours worked on a Sunday and Monday.

"The Claimant was paid for his Monday night work by way of overtime as agreed with the Respondent. The Claimant claimed this overtime by the submission of his overtime sheet to the Respondent and he was duly paid the amount properly payable."

36. The Employment Tribunal went on to find it was an implied term of the contract, that the claims for overtime should be made within a reasonable time. The implication of such a term was necessary to give business efficacy to the contract, through an agreed process. The Employment Tribunal considered that had the Respondent been aware the Claimant considered he had such a high level of work that resulted in his being required to consistently work of 14 ¾ hour working day as well as over a thousand hours of overtime a year, it might have wished to have addressed the Claimant's view of his work requirements and the workload itself, and to have reviewed the nature of the Claimant's position in so far as whether the work could have been done more cost effectively. It could not have been envisaged at the time that the contract was entered into or of any subsequate variation, that the Respondent, a charity of limited means should be presented with a request for payment of around 7000 hours overtime (valued at in excess of £35,000) relating to a period spanning four and a half years. The Employment Tribunal however, stressed at paragraph 113:-

"113. However, the Tribunal's main finding of fact, on a balance of probabilities, is that the Claimant did not work the hours as claimed and the claim is not well-founded"

37. The Employment Tribunal then turned to consider "on call" time. Having regard to Simap it reached two main conclusions. Firstly, the Claimant was not required to work beyond 40 hours (see paragraph 117); when the contract was entered into the intention of the parties was that Mr Lynch would work a standard 40 hour week but would do additional work if expressly requested. Neither party expected he would work at the Respondent's disposal from 9am to 10.45pm every day of the week. Furthermore he was on call "if possible". The use of this phrase made it clear that Mr Lynch was not obligated to be on call and could decline. Therefore, he was not "required" to work more than 40 hours per week.
38. Secondly the contractual requirement that Mr Lynch be on call did not require him to be present at his place of work. He could be at his home or away provided that he told administrator how he could be contacted. Accordingly his time on call and time off site was not working time. Mr Lynch was not contractually required to be on site between 9 and 10.45pm and the time he was required to be on site was a question of fact for the Employment Tribunal.
39. The Employment Tribunal then turned to consider the national minimum wage.

"125. The Employment Tribunal concluded that the Respondent established that it did not fail to properly pay the Claimant in respect of overtime worked. Further, the Claimant was not required to be available at or near a place of work for the purpose of doing salaried hours or time work that has not been accounted for as part of his salaried hours or as part of paid overtime say for where the Claimant was entitled to spend time at home."

40. The Employment Tribunal drew attention to the fact that there had been no submissions or detail as to how the alleged underpayment should be calculated and noted:-

"As were the good deal of the Claimant's claim, the matter has been put in the sense of a generalised proposition".

41. The Employment Tribunal continued:-

"127. Are the Claimants hours 'salaried', 'time', or 'unmeasured' work or a combination of all or any of these? Is pay only to include salary? No figures were placed in evidence by the Claimant in respect of paid overtime. The Tribunal, as with a good deal of the detail of this case, relied upon figures submitted in evidence by the Respondent. The Tribunal has spent a much time and effort trying to achieve justice between the parties and makes the following conclusions. The pay reference period was a month. The calculation for the national minimum wage pay is total gross pay less elements of gross pay that are excluded for national minimum wage purposes and less other payments or deductions which do not count towards national minimum wage pay. The Claimant worked 'salaried hours work' in respect of his contractual forty-hour week and 'time work' with respect to paid overtime. An amount is permitted to be taken into account by the employer with regard to living accommodation by virtue of regulation 36 at the following daily rates: £3.25 from 1 October 2002; £3.50 from 1 October 2003; £3.75 from 1 October 2004; and £3.80 from 1 October 2005. The rate of the national minimum wage for these periods was £4.20 from 1 October 2002; £4.50 from 1 October 2003; £4.85 from 1 October 2004; and £5.05 from 1 October 2005.

128. The hourly rate paid to a worker in a pay reference period is the total national minimum wage pay received by the Claimant for the salaried work and time work in the pay reference period divided by the total number of salaried hours and time work worked by the Claimant in the pay reference period.

129. In respect of each month since 2001, the rate of the Claimant's overtime pay clearly exceeded the national minimum wage and taking into account the living accommodation and the Claimant's annual pay, the Claimant's salaried pay also exceeded the national minimum wage. Accordingly, taking the combination of 'salaried' and 'time' work when determining the hourly rate, as provided by regulation 14, the Claimant was paid above the national minimum wage during his employment for any month reference period from January 2001 and his claim is not well-founded."

42. The Employment Tribunal then went on to consider working time claims and firstly considered daily rest periods. It accepted that the Claimant was required to search and lock up the premises in the evening as from 30 January 2003 by reason of the requirements of the insurance policy. The Employment Tribunal accepted that this task took 30 minutes. The Employment Tribunal made clear:-

"133. As stated above, having regard to all the evidence, the Tribunal does not accept the Claimant's general proposition that he worked from 8.00 until 10.45 from Tuesday to Saturday. The best evidence before the Tribunal was produced by the Respondent. Adding forty-five minutes (fifteen minutes at the end of the last course plus thirty minutes locking up time) onto the last daily entry in the schedule of bookings contained in Appendix 2 of Mr Curtis' witness statement in respect of 2004 and 2005 (which were the only dates where evidence was available to the Tribunal), which although not, wholly accurate the Tribunal accepts as being the best evidence of the: hours required to be worked by the Claimant in this respect, and comparing that time with the time fifteen minutes before the first course on the following day, it appears that the Respondent did breach the Working Time Regulations on a number of occasions being on or around seven times per month for 2004 and twelve times per month for the first nine months of 2005. The vast majority of the infringements are only by a margin of around 15 minutes."

43. The Employment Tribunal rejected the Respondent's contention that the Claimant worked unmeasured time pursuant to regulation 20 of the Working Time Regulations:-

"The nature and performance of a Claimant's work was not such that he had total freedom to decide when and how much work he was to do. Although largely able to prioritise his working day, the Claimant was required to be present at certain times depending upon the timing of courses run at Ripley House and the lock-up period."

44. The Claimant's claim that he has not been allowed sufficient rest breaks was found to be well founded. There is no cross appeal against this part of the decision and the Employment Tribunal considered it was just and equitable having regard to the Respondent's refault and the loss sustained by the Claimant attributable to the complaint to award him the sum of £800. The Employment Tribunal considered it was just and equitable to award this broad figure based upon an estimate of an hour's net pay for each breach.
45. In relation to weekly rest periods the Employment Tribunal found on the balance of probabilities Mr Lynch did not work Monday mornings so he did receive 24 hours rest in each certain day period. Even if he did work on Mondays he would fail to discharge the burden of proof because it would be necessary to show that he had worked on the Sunday also.
46. In relation to weekly working time the Employment Tribunal concluded that if he was working over 48 hours per week this was a matter for the Health and Safety Executive under regulation 28 but the Employment Tribunal did not have jurisdiction to consider that complaint under regulation 30(1). However, if it were a matter for the Employment Tribunal it would have concluded that the Claimant was not contractually required to work at the Respondent's disposal in excess of 48 hours per week in any reference period.
47. The Employment Tribunal went on to consider that a claim in relation to failure to provide properly itemised pay statements was not well founded. It then went on to deal with Mrs Lynch's claim. As there is no appeal in relation to Mrs Lynch we do not need to consider this. Finally, we have already referred to the hope expressed by the Employment Tribunal that the parties might be able to settle their differences by conciliation or mediation.

Discussion of the law

48. We start by reference to unauthorised deductions from pay. Section 13(1) of the Employment Rights Act 1996 provides as follows:-

"13 Right not to suffer unauthorised deductions

(1) An employer shall not make a deduction from wages of a worker employed by him unless-

(a) the deduction is required or authorised to be made by virtue of a statutory provision or a relevant provision of the worker's contract, or

(b) the worker has previously signified in writing his agreement or consent to the making of the deduction."

We also refer to section 13(3):-

"Where the total amount of wages paid on any occasion by an employer to a worker employed by him is less than the total amount of the wages properly payable by him to the worker on that occasion (after deductions), the amount of the deficiency shall be treated for the purposes of this Part as a deduction made by the employer from the worker's wages on that occasion."

49. "Timework" is defined by paragraph 3 of the National Minimum Wage Regulations 1999 as work paid for under a worker's contract by reference of the time for which a worker works and is not salaried hours work. Salaried hours work is defined by regulation 4:-

"4 The meaning of salaried hours work

(1) In these Regulations "salaried hours work" means work-

(a) that is done under a contact to do salaried hours work; and

(b) that falls within paragraph (6) below.

(2) A contract to do salaried hours work is a contract under which a worker-

(a) is entitled to be paid for an ascertainable basic number of hours in a year (referred to in this regulation as "the basic hours"); and

(b) is entitled, in respect of hours that consist of or include the basic hours, to be paid an annual salary-

(i) by equal weekly or monthly instalments of wages, or

(ii) by monthly instalments of wages that vary but have the result that the worker is entitled to be paid an equal amount in each quarter,

regardless of the number of hours in respect of which the worker is entitled to the annual salary that are actually worked by him (if any) in any particular week or month; and

(c) has, in respect of those hours, no entitlement to any payment other than his annual salary or no such entitlement other than an entitlement to a performance bonus.

(3) A contract that satisfies the conditions in paragraph (2) does so-

(a) whether or not all the basic hours are working hours;

(b) whether or not the worker can be required under his contract to work, or does in fact work, any hours in addition to the total of hours in respect of which he is entitled to his annual salary, and regardless of any payments made in respect of those additional hours."

50. Regulation 6 defines unmeasured work as follows:-

"6 The meaning of unmeasured work

In these regulations "unmeasured work" means any other work that is not time work, salaried hours work or output work including, in particular, work in respect of which there are no specified hours and the worker is required to work when needed or when work is available."

51. Regulation 11 defines the current national minimum wage and regulation 14 sets out the method of determining whether or not the national minimum wage has been paid. We also need to refer to regulation 15(1) and 16(1) which deal with the position where the work is available for work at or near his place of work:-

"15 Provisions in relation to time work

(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.

16 Provisions in relation to salaried hours work

(1) Subject to paragraph (1A), time when a worker is available at or near a place of work for the purpose of doing salaried hours work and is required to be available for such work shall be treated as being working hours for the purpose of and to the extent mentioned in regulation 22(3)(d) and (4)(b) except where-

(a) the worker's home is at or near the place or work; and

(b) the time is time the worker is entitled to spend at home."

52. Regulation 30 deals with payments to the worker to be taken into account and we refer to (d):-

"(d) where the employer has provided the worker with living accommodation during the pay reference period, but in respect of that provision is neither entitled to make any deduction from the wages of the worker nor to receive any payment from him, the amount determined in accordance with regulation 36."

We also refer to regulation 36:-

"36 Amount permitted to be taken into account where living accommodation is provided

(1) The amount referred to in regulations 30(d) and 31(1)(i) is the amount resulting form multiplying the number of day sin the pay reference period for which accommodation was provided by [£3.90].

(2) For the purposes of paragraph (1), living accommodation is provided for a day only if it is provided for the whole of a day form midnight to midnight."

53. Regulation 17 entitles a worker to be paid a difference between his contractual rate and the national minimum wage of the relevant reference period where the claim is brought as an unauthorised deduction from wages claim. It will be presumed that the worker was paid less than the national minimum wage unless the contrary was established: see regulation 28(2).
54. In so far as the Working Time Regulations are concerned, we do not consider it necessary to set these out in our decision but we have had regard to regulations 4, 10, 11, 13, and 30 and also to sections 221 to 224 of the Employment Rights Act.
55. We also need to consider the authorities in relation to on call work, starting with Simap. Simap was concerned with the working hours of doctors who spent time on call as members of primary health care teams. The issue considered by the European Court of Justice was whether this on call time amounted to working time. ECJ had this to say:-

"47. It must be borne in mind that that directive defines working time as any period during which the worker is working, at the employer's disposal and carrying out his activity or duties, in accordance with national laws and/or practice. Moreover, in the scheme of the directive, it is placed in opposition to rest periods, the two being mutually exclusive.

48. In the main proceedings, the characteristic features of working time are present in the case of time spent on call by doctors in primary care teams where their presence at the health centre is required. It is not disputed that during periods of duty on call under those rules, the first two conditions are fulfilled. Moreover, even if the activity actually performed varies according to the circumstances, the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance."

We also refer to paragraph 50:-

"50. As the Advocate General also states in point 37 of his Opinion, the situation is different where doctors in primary care teams are on call by being contactable at all times without having to be at the health centre. Even if they are at the disposal of their employer, in that it must be possible to contact them, in that situation doctors may manage their time with fewer constraints and pursue their own interests. In those circumstances, only time linked to the actual provision of primary care services must be regarded as working time within the meaning of Directive 93/104."

Finally we refer to paragraph 52:-

"52. The answer to Questions 2(a) to 2(c), 3(a), 3(b) and 4(c) is therefore that time spent on call by doctors in primary health care teams must be regarded in its entirety as working time, and where appropriate as overtime, within the meaning of Directive 93/104 if they are required to be present at the health centre. If they must merely be contactable at all times when on call, only time 1inked to the actual provision of primary care services must be regarded as "working time."

56. Reliance was placed by the Claimant on a further decision of the ECJ Landshaupstadt Kiel v Jaeger [2003] IRLR 804. This decision was not cited to the Employment Tribunal. Paragraphs 63 to 65 of this decision appear to be material:-

"63. As regards the latter condition in particular, it must be noted that, notwithstanding the fact that duty on call is performed at regular intervals, the doctors concerned are called upon to perform their work at different times over a given period of days or weeks.

64. The answer to the fifth question is therefore that work performed by doctors in primary health care teams whilst on call constitutes shift work arid that such doctors are shift workers within the meaning of Article 2(5) and (6) of Directive 93/104.

The applicability of the derogations provided for in Article 17(2), (3) and (4) of Directive 93/1 04 (Question 3(c))

65. By Question 3(c), the national court seeks essentially to ascertain whether, in the absence of national provisions transposing Article 16(2) of Directive 93/104 or, as the case may be, expressly adopting one of the derogations provided for in Article 17(2), (3) and (4) thereof, those provisions can be interpreted as having direct effect."

57. We were then referred to the decision of the Court of Appeal in British Nursing Association v Inland Revenue [2002] IRLR 480 (another decision not referred to the Employment Tribunal). In that case employees provided a telephone booking service working by day at the employer's premises but at night from their own homes. They were required to be available to deal with telephone calls. The Court of Appeal upheld that decision. In the Notice of Appeal reference is made to the judgment of Buxton LJ:-

"12. I have to say that not only was it open to the Employment Tribunal and to the Employment Appeal Tribunal to find that the workers were working throughout their shift, but also, as an issue of the ordinary use of the English language, it seems to me self-evident on these facts that they were Indeed so working. No one would say that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night-time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home.

58. Buxton LJ also said at paragraph 13:-

"13. That in the event there may during the middle period of the night be few calls to field is nothing to the point. It is for the employer to decide whether it is economic and necessary to his business to make the facility available on a 24-hour basis. If he does so decide, it is the availability of the facility, not its actual use, that is important to him; and that is what he achieves by the working arrangements described in this case."

59. The principal authority relied upon by Mr Lynch and the only one specifically referred to by Mr Kean was that of MacCartney v Oversley House Management UK EAT/0500/05, a decision of the EAT presided over by HHJ Richardson. The case for Mr Lynch was put on the basis that the facts of MacCartney bore a striking resemblance to the facts of his own case. Mrs MacCartney undertook salaried hours work as manager or warden of sheltered accommodation and was required to remain on call to residents as for that purpose to remain on or close to her place of work. She was considered to be "working" for the purposes of the Working Time Regulations while on call notwithstanding that she had been provided with a home by the employer at her place of work. The home contained her office and she was always liable to answer calls directly from clients and the public. She was required to remain available at the place determined by her employer with a view to performing services if need be or when requested to intervene. An important part of her duties was to respond to emergencies. Every resident had an emergency pull cord connected to a mobile phone Mrs MacCartney always had to carry while on duty. In that case the EAT found that Mrs MacCartney was on call for the whole 24 hours. She was required to be on site or within a 3 minute radius and could not socialise in the town or visit her daughter or family although she could receive visitors, listen to music, eat under take, other activities at home and of course sleep in her own bed. She was required to answer emergency and non-emergency calls (about 15 in number). The Employment Tribunal considered that following the decision in Jaegar:-

"It is plain that workers who are on call at a place where they are required by their employer to remain may be said to be "working" when sleeping or resting."

The EAT summarised its conclusion as follows:-

"A manager or warden of sheltered accommodation who is required by her employer to remain on call to residents and for that purpose to remain on or close though her place of work is "working" while on call even if her employer provides her with a home at her place of work."

The Notice of Appeal and submissions in support

60. The Notice of Appeal and the skeleton argument raise a number of factual issues. We think it helpful to set out the factual issues that have been raised in order to see the extent to which these can be supported by the evidence put before the Employment Tribunal.
61. Mr Lynch has alleged that the centre changed from a quiet and peaceful place to one of high activity and to a high volume entertainment centre with the construction of a large addition where weddings, funerals, discos and other large parties were held. The Chairman has commented that no evidence was led save in relation to weddings and certain other functions. In oral evidence reference was made to five birthday parties. Ledgers presented by the Respondent did not bear out the case in relation to funerals or discos save in relation to one possible social event, the Christmas Party of Kentish Opera. The focus of Mr Lynch's case was on increased weddings and in cross examination Mr Lynch said he would not argue with the Respondent's case on the increase in usage.
62. Secondly, paragraph 15 of the Notice of Appeal refers to an extraordinary change in usage coupled with an increase in hirings which resulted in a dramatic increase in Mr Lynch's workload requiring him to work between 8am and 10.45pm. The factual basis of this case was not accepted by the Employment Tribunal which rejected the suggestion he worked from 8am to 10.45pm every Tuesday to Saturday together with an additional 2 ½ hours on Sundays and 3 ½ hours on Mondays. The Employment Tribunal found that the increase in usage was gradual.
63. (3) In paragraph 16 of the Notice of Appeal Mr Lynch asserted that although he submitted timesheets he was only paid for a 40 hour week and was refused pay for overtime except on Mondays and when he was Duty Manager. He was never paid for overtime between Tuesday and Friday. Mr Freer commented that this was inaccurate and contrary to the findings of the Employment Tribunal at paragraphs 31 to 35. The Employment Tribunal at paragraph 108 found that Mr Lynch was paid overtime through the agreed route: he claimed and was paid. The Employment Tribunal accepted Mr Curtis's schedule as accurate. One time sheet only had been put in as evidence: see paragraph 35 of the decision. In this timesheet 25 hours of overtime were claimed for two weddings. This corresponded with Mr Curtis's schedule and included payments for Sundays and Fridays; it also showed that he was paid on days beyond Monday evenings and when he was duty manager.
64. (4) Mr Lynch asserts that the letter of 6 May 2005 amounted to an admission that he was working in excess of 40 hours per week and was not being paid. Mr Freer referred to findings of the Employment Tribunal at paragraphs 18 and 19 and did not regard the letter as being a concession. No such case was made in evidence, cross examination or in submissions. The Respondent submits that the Respondent in its letter was seeking to accommodate Mr Lynch's complaints against a background in which Mr Lynch had that stipulated his overtime over a number of years was not being paid. We would add that we ascertained during the course of submissions that on no occasion had a claim by Mr Lynch for overtime been rejected and at no time was it ever suggested to the Employment Tribunal that the Claimant had been instructed he could not claim overtime during his normal working week.
65. (5) Notice of Appeal 20. This relates to Mr Lynch's solicitors responding to the Respondent's letter of 6 May in a letter of 24 August. The Chairman notes that the letter of 6 May contained an offer to which there had been no substantive reply prior to 24 August and that the letter of 24 August sought to add a significant caveat to the Respondent's offer by stipulating fixed hours of overtime. The Respondent submitted (correctly in our view) that this was not acceptance of an offer but a counter offer. Proceedings were commenced before the Respondent even had a time to consider this and this is not a point that was raised in the Claimant's internal appeal.
66. (6) Notice of Appeal paragraph 21. It is said that the Respondent's letter of 17 October rescinded the offer: in fact the letter simply dismissed the appeals.
67. (7) Notice of Appeal 23. Mr Lynch asserts he was the only full time employee who worked between 8am to 9.45pm Tuesday to Saturday without any help or assistance. Mr Lynch may have been the only full time employee save possibly the gardener whose hours of work were not known but the Employment Tribunal (see paragraphs 107, 110 and 111) found that he did not work constantly between 8am and 9.45pm Tuesday to Saturday without help or assistance and found that he was able to set his own times and work to 40 hours per week including the 15 minutes before and after each letting. Further he had assistance from the administrator Mrs Lynch and an additional cleaner whose contract ran from spring 2004 the gardener. In addition, to some extent his duties reduced with the closure of the pottery.
68. (8) Paragraph 25. Mr Lynch complained there was no separate entrance to his flat and his door was accessible at all times by hirers. He was required to set the building alarm that was tied to his flat and monitor the system throughout the night. The evidence from Mr Lynch was that on occasion visitors who had had too much to drink might come across his premises while outside Ripley House but not that his premises were immediately and obviously accessible to hirers at all times. The evidence was that he set the alarm as part of a final security check. There was no evidence he monitored the building alarm during the night. His evidence was that was his last security check.
69. (9) Notice of Appeal 26 Mr Lynch complained that his home telephone number was listed by British Telecom as the business contact number for the Respondent: his office was in his kitchen and his home number was given out by the Respondent as the warden contact number and printed in business diaries. He was required to carry a cordless telephone around at all times during 9am and 10.45pm as a business contact and also for emergencies. There was, however, no evidence before the Employment Tribunal that the kitchen was used as an office or that his number was listed by BT as a business contact for the Respondent and Ripley House. The only evidence was that from Mrs Lynch that their telephone number was in the diary of events and that the public telephoned her. There was no evidence that Mr Lynch was required or indeed did in fact carry a cordless telephone around with him.
70. (10) Notice of Appeal 27. Mr Lynch answered the telephone calls daily: there was no evidence of this before the Employment Tribunal.
71. (11) Notice of Appeal 28. Mr Lynch complains there was a buzzer in the hall and a second door bell. Again there was no evidence of this before the Employment Tribunal.
72. (12) Notice of Appeal 29. Mr Lynch received telephone calls on Sundays from potential hirers and would receive unannounced visitors. There was no evidence of this before the Employment Tribunal.
73. (13) Notice of Appeal 30. Mr Lynch enjoyed no private time at home. This was never argued before the Employment Tribunal although Mr and Mrs Lynch did say that they no longer had the luxury of quiet enjoyment of their property: this was not because of visitors but in the context of the fact that the first floor was used for functions.
74. (14) Notice of Appeal paragraph 36. Mr Lynch maintains he obtained a mobile phone and his number was provided to the administrator as an emergency contact. Again there is no evidence of this having being put to the Employment Tribunal.
75. (15) Notice of Appeal 38. Mr Lynch was not in control of bookings so he was not able to control his working time between 8am and 10.45pm. It was correct that Mr Lynch did not control the bookings but incorrect to say he was not in control of all his working time. The Employment Tribunal at paragraph 110 found on a balance of probabilities that there were no instances when the Claimant was expressly required by the Respondent to be "on call" outside him working a 40 hour week.
76. (16) Notice of Appeal 39. Mr Lynch asserts that he repeatedly complained about his unpaid overtime hours but was brushed aside and left with no option but to obtain the assistance of a solicitor. This again is contrary for the findings of the Employment Tribunal at paragraphs 49 and 50 of the decision. His solicitor's letter of 18 March 2005 put the case as subsequently pleaded and argued before the Employment Tribunal that the Claimant in fact worked every working day between 8am and 9.45pm.
77. (17) Notice of Appeal 40. The Claimant maintains that the first opportunity he had to claim overtime was after receipt of the letter of 6 May 2005. This again is contrary to the findings of the Employment Tribunal at paragraphs 31 and 32. We also refer to our comments on factual point (4).
78. (18) Notice of Appeal paragraphs 41 to 44. Mr Lynch complains that in his regular weekly overtime submissions he was given no guidance as how to record his time. At no time did the Respondent seek to suggest he was not working the hours on his monthly time slips and advise him to stop working or to reduce his working hours to 40 hours only. He maintains he was only paid for his basic hours plus Monday evenings and the time spent as Duty Manager. The only documents placed before the Employment Tribunal which were relevant to this allegation were his claims dated 20 September, 24 October, 24 November, and for the period 6 September to 21 September by which time he had already commenced his proceedings. There was no evidence to support his case that he was only paid for basic hours plus Monday evenings and the time spent as duty manager.
79. (19) Notice of Appeal paragraph 46. Mr Lynch maintained that he raised his claims informally and through the grievance procedure without satisfaction and it was readily apparent that the Respondent no longer intended to be bound by his employment contract as it had no regard to the relationship of trust and confidence: this was not a point argued before the Employment Tribunal and indeed the Employment Tribunal appears to have been satisfied that a meaningful conciliation or mediation would have been to the benefit of both parties. The Employment Tribunal understood the Claimant still enjoyed living at Ripley House and that his concerns were more about a change to way of life rather than pay while the Respondent had no complaint as to the standard of work provided by the Claimant. The Employment Tribunal went on to express the hope that the parties could now discuss and address their respective of concerns in a constructive and mutually beneficial way.
80. (20) Notice of Appeal 63. Mr Lynch suggests the Employment Tribunal struggled with the national minimum wage claim. Mr Freer observes that if the Employment Tribunal did struggle this is because no details were supplied by Mr Lynch.
81. (21) Notice of Appeal paragraphs 71 to 86 relating to Working Time Regulations and rest periods. The only authority referred to before the Employment Tribunal was Simap: the other authorities, in particular Jaeger and MacCartney were not referred to. All legal arguments and submissions were based upon Simap. Further, the Employment Tribunal rejected the contention that the Claimant was engaged in continuous work. It was wrong for Mr Lynch to assert that he was required to be on site: as the Employment Tribunal noted at paragraph 107, submitted the Respondent he regularly left the Ripley House.
82. (22) Notice of Appeal 87. Mr Lynch here submitted that he was working "salaried hours work" within regulation 4. He was entitled to be paid for an ascertainable basic number of hours in a year by virtue of regulation 4(2)(a). He was entitled to be paid an annual salary regardless of the hours actually worked in any particular week or month by virtue of regulation 4(2)(b). He had in respect of those hours no entitlement to any payment other than annual salary (see regulation 4(2)(c)). The work he did under that contract was work in respect of which he was entitled in addition to annual salary: see regulation 4(6). The Claimant, like Mrs MacCartney was at work throughout the period when he was providing on site cover and he was entitled to be paid for those hours. No such argument was advanced before the Employment Tribunal. The case put forward before the Employment Tribunal was set out in paragraph 23 of the Claimant's written submissions. It was there submitted that due to the failure to pay Mr and Mrs Lynch for their hours of overtime worked the remuneration they received whether calculated on the weekly, monthly or annual basis was less than the prevailing statutory minimum wage prevailing at all relevant times. Mr Freer suggests that the only other reference to this point was contained in the Claimant's reply (which I do not believe we have seen) which rebutted the suggestion that the Claimant's work constituted unmeasured working time.
83. As a general point we note that all the factual matters that we have referred to were capable of being put in evidence before the Employment Tribunal. They would thus appear to be inadmissible on appeal under the rule in Ladd v Marshall [1954] IWLR 1480 There is no explanation as to why these factual matters were not put before the Employment Tribunal at the time but we assume that is why the Registrar refused permission to the Claimants to adduce fresh evidence. We of course distinguish between the right to refer to fresh evidence and the right to refer to authorities that were not before the Employment Tribunal as to which there can be no objection if they are cited in support of a point that was argued before the Employment Tribunal.

Arguments in support of appeal and Respondent's contrary submissions

84. In his skeleton argument, Notice of Appeal and submissions, Mr Lynch has sought to raise issues of fact that are either contrary to those found by the Employment Tribunal or which were not raised before it. We have set these out we do not need to repeat them.
85. In his submissions Mr Kean made a number of points simply related to the facts. The Claimant was only a worker and he was not educated. He did not want money but simply to get a proper working week. He hired a solicitor although he had little money. He was never told to desist from working the hours he worked although his solicitors had told the Respondent in a letter of 18 March 2005 he was working every day from 9am to 10.45pm. Ripley House was open between 9am and 10.45pm. There were effectively 3 "shifts" from 9am to 12pm, 12pm to 6pm and 9pm to 10.45pm, classes were booked throughout the day. There was no set pattern to his work. Although Mr Coulson's appendix suggested Mr Lynch was free during any period of hire, save 15 minutes before and 15 minutes after, he had many other duties to perform on a daily basis. Although the Employment Tribunal found the Claimant was free to be at home he was not free in fact. The MacCartney case was very similar and Mrs MacCartney even had a manager to support her.
86. After 3pm he was on call and available to intervene; no-one else was there. He was unable to leave the premises and was, therefore, working for the purposes of the Working Time Regulations. The Claimant had to do everything. He had to look after all the weddings and the Employment Tribunal was totally wrong to say he was free to do what he wished at home. He was working the whole time when on call between 9am and 10.45pm. Mr Kean was anxious to repeat that the Claimant was working and was never able to put his feet up. He was always responsible. He was always there in a case of emergency and everyone had his telephone number. The phone book showed that he was listed as the warden. This was not new evidence; he was simply trying to get the truth across. The Claimant's flat was part of Ripley House. There were 3 doors into the flat which had been converted from 3 rooms. There was a buzzer in the flat. It was obvious, therefore, if the administrator was not there the Claimant would have to let people in. Further, his home telephone number was used for the Respondent's purposes. The Claimant did not appreciate that the value of his accommodation was to be taken into account in determining the minimum wage until he saw the solicitor. The letters from his solicitors were a cry for help rather than a claim for a large sum of money. The work got too much for any person to do. The purpose of the letter from the solicitor of 18 March 2005 was to put the Respondent on notice about the number of hours the Claimant worked. The Respondent invited a claim and this was submitted by solicitors. This was not about money. It was about working conditions.
87. Mr Kean went on to say that the Claimant was overworked: Ripley House did not run itself; it was run by the Claimant. The Respondent should have told him not to work the hours he did but it never did so. The findings at paragraph 133 of the decision of the Employment Tribunal in which it rejected the Claimant's case that he worked from 8am till 10.45pm Tuesday to Saturday were wrong. The evidence submitted by the Respondent was not wholly accurate. The Claimant's evidence would have been different so the Employment Tribunal were in error in accepting the Respondent's case. The Claimant had received a bonus initially and that was because the Respondent knew he did extra work. The bonus was later added to his salary and he was no longer paid as a bonus. The Claimant's home was his work place so all the time he spent there was working time. This was a point not addressed by the Employment Tribunal. The Employment Tribunal never addressed the fact that the Claimant worked every night. When asked why the Claimant had made no earlier claims for overtime, Mr Kean submitted that there was no provision in the contract for overtime; the Claimant originally got the bonus. It was to compensate the Claimant for overtime. Subsequently the Claimant was told he could only claim for overtime outside his normal working week. We note this particular point was never raised before the Employment Tribunal in evidence or submissions and does not appear in any of the documentation we have seen including correspondence from the Claimant's solicitors and his claim form.
88. The Respondent's submissions in relation to the factual basis of the appeal are that the way the case is now being put in a way that was never put to the Employment Tribunal and that the Claimant's submissions were "Alice in Wonderland". They are not based on evidence put before the Employment Tribunal and are contrary to its findings. Reference was made to the letter from the Respondent of 6 May 2005 in which they stated that they would pay for hours worked in excess of 40 in any week if you claim them:-

"As we have always done."

89. There is no evidence of any request for overtime not being paid in full. The Employment Tribunal concluded at paragraph 108 that the Claimant claimed his overtime hours by an agreed route and was paid for them. The Claimant's case before the Employment Tribunal was the blanket claim that he had actually worked 14 ¾ hours a day. The case was not put to the Employment Tribunal on the basis the Claimant was merely available to work because he was at home and required to be on the premises.
90. We now turn to the more specific grounds of appeal. The principal ground of appeal (no 8) is that the Employment Tribunal was wrong in law to find that Mr Lynch was not working for the purposes of the Working Time Regulations when he was on call: reference was made to Simap, Jaegar and MacCartney. The case that is put in this regard is that the Claimant was working throughout the period when he was on call. He was required to take calls, particularly business emergency calls, either required to be in his tied accommodation or within a short distance of it and "constantly to be armed with a cordless or mobile phone on which calls were received. Not only was his home embedded in the site where he worked, but it contained his office." He was accordingly, so it was submitted, working as defined by both the Working Time Regulations and the Working Time Directive because he was "working" at his employer's disposal and carrying out his activity of duties. Reliance is place on Jaegar because the Claimant was required to be in his designated flat. Accordingly, the facts were indistinguishable from MacCartney in which, of course, it was held that when Mrs MacCartney was on call she was working. It is said the Employment Tribunal failed to have regard to the extent to which the Claimant worked at home and it should have concluded that he had worked between 9am and 10.45pm daily. The Claimant's case, it was said, differed from Simap as his workload was not split through the day and his home was inside his workplace. He was the sole full time employee responsible for all matters in relation to the daily use of the facility between the hours of 9am and 10.45pm and he had to remain there with a view to performing his services including answering calls from the public. He was accordingly restricted as to where he might go.
91. The Respondent's case in relation to this ground of appeal is that Mr Lynch is attempting to construct a factual basis similar to that in MacCartney when this was neither the basis of his case before the Employment Tribunal nor of the evidence adduced. The claim could have been put on the basis that he was on call for a period and therefore should be deemed in the particular circumstances to have been working. It was put that way in final submissions but there is a fundamental difference between the Claimant's case and that of Mrs MacCartney. Unlike Mrs MacCartney, the Claimant had the opportunity to decide whether or not he would make himself available to be "on call" at other times between 9am and 10.45pm as was clear from paragraph 4 of his contract of employment. Also Mrs MacCartney was never off duty. She was always liable to answer calls from residents. The Claimant could choose whether or not to answer the telephone. There was no evidence, as we have noted, as to the number or frequency of calls. Unlike Mrs MacCartney the Claimant was not required to remain on site during those hours when he was "on call… if possible". He had the freedom to be entirely absent from the site if he chose as indeed he regularly was, among other reasons in order to collect Mrs MacCartney from her other job. Whereas Mrs MacCartney had an office in her living accommodation, the Claimant did not. The Claimant was only on call "if possible" and the evidence as to what he did when on call at home and the suggestion that it was in effect his office was never put before the Employment Tribunal. The issue is fact sensitive. If the Claimant really believed he was entitled to some 7000 hours worth of overtime why had he never claimed for them? It was submitted that this was because Mr Lynch knew he was not obliged to and did not work all those hours.
92. It was submitted that the Employment Tribunal was entirely correct to reject the Claimant's evidence in relation to his working from 8am to 10.45pm for every working day: see paragraph 107 of the decision. The Employment Tribunal was entirely entitled to come to the conclusion that this was not credible. It is suggested that the nature of the claim reflected a failure to be frank either with the Employment Tribunal or with the Respondent when making claims. Further, the evidence showed that Ripley House was unused for some two thirds of the time between 9 and 10.45pm.
93. The next two grounds of appeal (nos 9 and 10) relate firstly to the case that the Employment Tribunal erred in law when calculating the hours of the Claimant based upon the Respondent's failure to provide daily rest breaks in accordance with regulation 10 of the Working Time Regulations 1998. Secondly it said that it was wrong in law to hold that the Claimant had received all the rest breaks to which he was entitled under regulation 11 of the Working Time Regulations 1998: the Notice of Appeal refers to Gallagher v Alpha Catering Services [2005] IRLR 102. We were not referred to this authority and the Respondent's case in relation of calculation of hours was that this was a factual issue not open to appeal and so far as the rest breaks were concerned the Employment Tribunal at paragraphs 138 and 139 had held that the Claimant had failed to discharge the burden of proof.
94. The next ground of appeal (ground 11) was that the Employment Tribunal was wrong in law in holding that the Claimant was undertaking a combination of "unmeasured" "salaried" and "time" work for the purposes of calculating the Claimant's pay under National Minimum Wage Regulations 1999. The Claimant's case appears to be that he worked "salaried hours" within regulation 4 so he was entitled to be paid his ascertainable basic hours and his annual salary regardless of the hours actually worked. He said that the Employment Tribunal failed to have regard to the extent to which he worked at home although the Employment Tribunal had found that he did not work unmeasured time pursuant to regulation 2 of the Working Time Regulations 1998. That was because the need for performance of his work was not such that he had total freedom to decide when and how much work he was to do.
95. In response the Respondent submits that the Employment Tribunal found that the Claimant did work "salaried hours work" in respect of his contractual 40 hour week and "time work" with respect to paid overtime. It rejected the Respondent's submission that that work was unmeasured work.
96. The next ground of appeal (ground 12) is that the Employment Tribunal was wrong to find that there had been no unauthorised deductions. Mr Kean suggested in his reply that the £800 awarded in relation to the failure to give satisfactory daily rest periods was not particularly generous and ignored the fact that the Claimant's flat was integral to Ripley House and everybody had his phone. The Respondent submits that the Employment Tribunal was entitled to make the findings of fact that it did and was well able to assess the quantum for the breach of the Working Hours Regulation. It is apparent that the Employment Tribunal's decision is based on the premise that the Claimant worked until 10.45pm on occasions having started at 9am. It follows that it had rejected the case that he had worked from 8am. The majority of the infringements were 15 minutes only so the compensation for the breach was not ungenerous.
97. The final ground of appeal (ground 13) was that the Employment Tribunal was wrong to find it had no jurisdiction over the breach of regulation 4(1) of the Working Time Regulations. The Employment Tribunal found that regulation 30 did not permit a complaint to be made and the Respondent submitted that that was correct.

Conclusions

General

98. The main issue in this case is clearly whether the Employment Tribunal was correct in finding the Claimant was not working between the hours of 8am or 9am and 10.45pm Tuesdays to Saturdays. The Employment Tribunal has found as a fact on the balance of probabilities that there were no instances when the Claimant was expressly required by the Respondent to be "on call outside him working a 40 hour week": see paragraph 110 of the decision. It is against that background that we are satisfied, the Claimant has attempted to construct a case for this appeal so as to fit the facts of MacCartney. This, however, was not the case addressed to the Employment Tribunal. The Claimant clearly has a difficulty. Before the Employment Tribunal his case was that he actually worked at least 5 days from 8am or 9am until 10.45pm. His case was not that he was working for some of that time only in the sense of being on call or on duty if necessary. That evidential case was rejected by the Employment Tribunal. The alternative case that he was deemed to be working because he was during those hours "at his employer's disposal and carrying out his activity or duties" (see regulation 2(1) of the working time regulation was advanced in submissions before the Employment Tribunal but not on the factual basis that the Claimant now seeks to put forward. There is an obvious difficulty in that it was inconsistent with his primary case. There are also significant factual difficulties.
99. The points now relied upon, were as we think has been demonstrated, not before the Employment Tribunal. The nearest that one comes is in paragraph 3 of his witness statement where the Claimant maintained:-

"I cannot obtain paid work during these hours (9am to 10.45pm) as I am tied to Ripley House on call."

100. It is possible that had the Claimant put his case differently and not insisted that he had worked throughout the hours 8am to 10.45pm but had concentrated on seeking to demonstrate that during those hours, if not actually working, he was required to be on call, the Employment Tribunal may have taken a different view. Unfortunately from the Claimant's point of view that is not the way he chose to put his case and the Employment Tribunal cannot be criticised, in our opinion, for dealing with the matter on the facts that were presented to it and which it found.
101. In the circumstances we accept the Respondent's submissions in this regard. The case is fact sensitive and distinguishable from MacCartney. The Claimant was crucially only on call "if possible": he did and was able to leave Ripley House as he chose. Unlike Mrs MacCarthy who was always on duty and always liable to take calls from residents, Mr Lynch could decide whether or not to answer the telephone. Mrs MacCartney was required to remain on site: Mr Lynch was not, he was only to remain on call "if possible". Unlike Mrs MacCartney there is no finding and no evidence was led, to suggest that his home was also in effect his office and thus a place of work. It seems to us that there is a significant difference between the positions of a caretaker or warden of a building such as Ripley House and the Doctors whose employment was considered in Simap and Jaeger. In Jaeger Doctors were provided with some sleeping accommodation but it was not their home. True it was that Mrs MacCartney was provided with a flat, it was also a place from which she carried out some of her work. No such finding was made in the present case so far as concerned Mr Lynch. As we have noted the Employment Tribunal found that there were no instances when he was expressly required to be on call that led to his working beyond a 40 hour week. Although it found that on occasions he had worked overtime for which he had not charged, there was no contractual requirement for him to work any overtime hours, and no obligation upon the Respondent to pay the Claimant in the absence of any claim for overtime by him. All claims he had made had been honoured.
102. In those circumstances, it seems to us that the appeal in relation to the Working Time Regulations fails on the facts.
103. As it seems to us all the other grounds of appeal will fail for the same reason because they are dependant upon the Claimant satisfying us that the Employment Tribunal was wrong as to the number of hours he worked.
104. Thus we do not see how his appeal in relation to the calculation of hours due not regulation 10 of the Working Time Regulation can succeed. Nor do we see how his claim that he had received all the rest breaks to which he was entitled under regulation 11 can succeed.
105. In so far as concerns the national minimum wage, this claim again is dependant upon the number of hours that he worked. The Employment Tribunal's findings that for the hours he worked he received more than the national minimum wage are findings of fact that cannot, in our opinion, be reversed. These were material before the Employment Tribunal that justified such findings.
106. Similarly, in our opinion his claim for unauthorised deductions is again dependent upon his claim that the Employment Tribunal has misdirected itself as to the number of hours that he was required to work, and cannot succeed.
107. In the circumstances we need say no more about these grounds of appeal.
108. Finally we agree with the Employment Tribunal that regulation 30 of the Working Time Regulations does not permit an application for breach of regulation 4(1).
109. In the circumstances the appeal fails. We would like to express our gratitude to Mr Kean for his courteous presentation of his Father's case as well as to Mr Knight. We do not in any way wish to belittle the hard work and contribution that the Claimant made over a number of years to Ripley House and to his devotion to his job. We are, however, not able to find that he has made out his case that the Employment Tribunal misdirected itself as to the number of hours he is deemed to have worked under the Working Time Regulations.