Employment Cases Update

The Governing Body of Binfield Church of England Primary School v Roll UKEAT/0129/15/BA

Date published: 08/04/2016

Appeal against a ruling that the Claimant, who was a site controller of a school living in a bungalow within or near to the school and was expected to deal with emergencies 24/7, had not been paid the national minimum wage. Appeal allowed and remitted to the same Tribunal.

Pre-ordr the 2018-19 edition of the Emp;oyment Tribunal Remedies Handbook and get a free digital edition worth £40

The Claimant was a site controller for a school living in a school bungalow within or near to the school. He was required by his contract to live at the school bungalow and be available 24 hours a day, 7 days a week to carry out his contractual duties, which included his being present at or near the site in order to deal with emergencies if they arose and to keep the site secure, thus even when he was at home, irrespective of whether he was actually performing any physical duties, he was still working pursuant to the terms of his contract. The school's case was that although the Claimant was obliged to be available to respond to emergencies if necessary and to live at the premises, his time spent at home could not be counted as working hours. His contract of employment stipulated his working hours as being 39 hours in total with the possibility of some further hours paid as overtime, and the school contended that the combined effect of the provisions of Regulation 16(1) and 16(1)(a) of the NMWR applicable to his case meant that time outside those hours could only be counted as working hours for the purposes of calculating whether he was being paid the minimum wage when during such hours he was actually awake and working. The ET disagreed and held that the Claimant was required to be available outside his normal working hours both during the school day (between his shifts) and out of school hours to deal with security, emergencies and other matters. His movements were restricted as a result. This meant that he had not been paid the national minimum wage for some years and was awarded over £80,000 in underpayments. The respondent appealed.

The EAT allowed the appeal. In the context of the National Minimum Wage Regulations 1999 the Employment Judge had left out of account in her analysis of the material terms of the contract important evidential material that ought to have been explained. The case was remitted back to the judge.

_______________

Appeal No. UKEAT/0129/15/BA

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

At the Tribunal

On 18 January 2016

Before

HIS HONOUR JUDGE HAND QC

(SITTING ALONE)

THE GOVERNING BODY OF BINFIELD CHURCH OF ENGLAND PRIMARY SCHOOL (APPELLANT)

ROLL (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR JULIAN MILFORD (of Counsel)
Instructed by:
Shoosmiths LLP
Apex Plaza
Forbury Road
Reading
Berkshire
RG1 1SH

For the Respondent
MR STEPHEN WYETH (of Counsel)
Instructed by:
Taylor Rose
First Floor Unit 8
The Point Business Park
Rockingham Road
Market Harborough
LE16 7QU

SUMMARY

NATIONAL MINIMUM WAGE

In the context of the National Minimum Wage Regulations 1999 the Employment Tribunal had failed to take into account or, if the factors had been taken into account, explain why they were not material, the following:

(1) The fact that the Claimant was able to leave the School's premises at any point outside his shift periods, provided that he was sufficiently nearby to deal with such emergencies as might arise.

(2) The fact that emergencies actually arose relatively infrequently.

(3) The fact that the Claimant was able to, and did, attend social functions off the School's premises, even if he might be called back from those functions, and even if he said that his social life was "curtailed" (the extent to which he did so without permission is not agreed between the parties, nor is the extent to which there was a finding of fact on this).

(4) The fact that the Claimant was able to stay away at weekends, upon notice being given, without taking that period as holiday.

(5) The fact that the School was under no statutory obligation to require any person to remain on the premises.

(6) If such was made (which is disputed between the parties) the finding of fact that the School did not discipline, and would never have disciplined, the Claimant for being away from the School outside his shifts (as opposed to failing to respond to an emergency).

(7) The fact that the Claimant's contract provided for a normal working week of 39 hours plus overtime, not for 24-hour working.

And consequently there was a remission to the Tribunal to consider whether those factors were material.

HIS HONOUR JUDGE HAND QC

Introduction

1. This is an appeal from an Employment Tribunal comprising Employment Judge Hawksworth. She was sitting at Reading on 24 and 25 November 2014, and her Reserved Judgment and Written Reasons were sent to the parties on 8 January 2015. By them she concluded that the Appellant had suffered unauthorised deductions from his wages of £81,532.37 because when all of his working hours were computed he was being paid less than the relevant National Minimum Wage as calculated by the National Minimum Wage Regulations 1999, which I shall refer to as "NMWR". The Appellant, the Respondent below, has been represented by Mr Milford of counsel, and the Respondent to this appeal, who was the Claimant below, has been represented by Mr Wyeth of counsel. Neither of them appeared at the Employment Tribunal. I shall refer from now on to the parties as "the Claimant" and "the School".

2. The Claimant was employed from 4 April 2011 as a Site Controller by the School, and he lived in a bungalow called, not surprisingly in the circumstances, the "School Bungalow". The precise location of this is not immediately apparent from the Written Reasons, but it must have been either within the curtilage of the School premises or immediately adjacent to them. The letter offering him the appointment as Site Controller is dated 29 March 2011. It contains the following sentence quoted by Employment Judge Hawksworth at paragraph 11 of her Written Reasons:

"The post is a residential appointment and you are required to occupy the accommodation at School Bungalow [address], provided for the better performance of your duties."

3. The School charged the Claimant rent, albeit, as I understand it, at a subsidised rate (Reasons, paragraph 12). In her evidence the Head Teacher of the School at the time of the hearing before the Employment Tribunal said that "having a site controller living on-site acted as a deterrent" (Reasons, paragraph 13). If, in her evidence, she went into any greater detail, then that has not been recorded in the Written Reasons. But I think a reasonable inference from her evidence would be that she believed his presence onsite deterred antisocial behaviour and criminal activity. As will appear later, that was not the only point of him being onsite.

4. His case, accepted by Employment Judge Hawksworth, was that he was required by his contract to live at the School Bungalow and be available 24 hours a day, 7 days a week to carry out his contractual duties, which included his being present at or near the site in order to deal with emergencies if they arose and to keep the site secure, thus even when he was at home, irrespective of whether he was actually performing any physical duties, he was still working pursuant to the terms of his contract. The School's case was that although the Claimant was obliged to be available to respond to emergencies if necessary and to live at the premises, his time spent at home could not be counted as working hours. His contract of employment stipulated his working hours as being 39 hours in total with the possibility of some further hours paid as overtime, and the School contended that the combined effect of the provisions of Regulation 16(1) and 16(1)(a) of the NMWR applicable to his case meant that time outside those hours could only be counted as working hours for the purposes of calculating whether he was being paid the minimum wage when during such hours he was actually awake and working.

The Issues

5. The main issue, as she conceived it, is set out by Employment Judge Hawksworth at paragraph 3 of her Written Reasons. The last sentence reads:

"3. … The main issues are whether the Claimant was required to remain on site out of hours, and whether during that time he was working for the purposes of the WTR [the Working Time Regulations] and the NMWR."

6. It is accepted by counsel that the issues that arise under the WTR and under the NMWR are by no means the same. Moreover, Employment Judge Hawksworth recognised that, because she says at paragraph 96 of the Written Reasons:

"96. What amounts to work for the purposes of the NMWR is not the same as working time under the WTR although some of the factors and principles relevant to considering working time under the WTR may also be of assistance when considering the NMWR."

7. Consequently, it is not suggested by either counsel that Employment Judge Hawksworth was in any way confused as between the two sets of Regulations, something which has occurred from time to time in some of the authorities that have been examined during the course of this appeal.

8. Employment Judge Hawksworth appears also to have been alert to the issues in this case because she found it necessary to suggest the addition of a number of issues in the context of the NMWR (see paragraph 8 of the Written Reasons). At paragraph 9 she sets out the issues of fact, at paragraph 9.1, as follows:

"9.1.1. Did R have an expectation that C would be available out of his contracted hours? How is this evidenced?

9.1.2. If so, were C's movements restricted in order that he would be readily available at all times? How is this evidenced?

9.1.3. Given the above, was C required in fact to be available throughout a period of 24 hours?

9.1.4. Does this requirement amount to 'on call' working?"

9. At paragraph 9.3 she sets out the issues in relation to the NMWR:

"9.3.1. It was agreed that C's work was salaried hours work.

9.3.2. In relation to each pay reference period:

9.3.3. What was C's remuneration?

9.3.4. Should any accommodation allowance off set R's liability for the National Minimum Wage ('NMW')?

9.3.5. What were C's hours of work for the purposes of the NMWR Regulation 4?

9.3.6. Should any hours be treated as work under Regulation 16(1) of the NMWR?

9.3.7. Has the R met its liability under the NMWR in the light of the hours worked and remuneration received in each pay reference period?"

10. It is not suggested by either counsel that her analysis of the issues was in any way erroneous.

The Approach to Issues under the NMWR

11. In my judgment, it is well to ask oneself at the outset what the task being undertaken by the Tribunal is when it is being asked to decide whether or not there has been a breach of the NMWR. At the start of this hearing I ventured to suggest that essentially this was an issue of deciding what the relevant and material terms of the contract of employment might be. I claim no credit for this and acknowledge that train of thought was prompted by the former President of this Tribunal in a Judgment he gave when presiding over a division of this Tribunal in the case of Whittlestone v BJP Home Support Ltd [2014] IRLR 176. At paragraph 57 of his Judgment Langstaff J said this:

"57. Work is to be determined upon a realistic appraisal of the circumstances in the light of the contract and the context within which it is made. …"

12. I suggest that the following propositions sketch out the sort of approach that should be taken to a case of this kind. First, where a contract is in writing, what will be relevant are the written terms of the contract. Secondly, contracts of employment are often partly written and partly oral. Thirdly, in order to identify the material terms of a contract that is partly written and partly oral, it is permissible for the Employment Tribunal to look at the subsequent conduct of the parties. At page 197 of the sixth edition of Lewison LJ's The Interpretation Of Contracts, section 19 of chapter 3 commences with these words:

"The court may not generally look at the subsequent conduct of the parties to interpret a written agreement. However, where the agreement is partly written and partly oral, subsequent conduct may be examined for the purpose of determining what were the full terms of the contract."

13. There then follows, as is characteristic of the work, a full, thoughtful and penetrating analysis of a variety of authority in support of that proposition; I need not go any further into it. Fourthly, the task of the Employment Tribunal is to identify the terms of the contract both from the written contractual material and from the evidence that might establish and illuminate what the orally agreed parts of the terms were. Fifthly, the Regulations divide various types of contracts into specific categories. Sixthly, having decided what the contract is, the Employment Tribunal will be able to decide what category of contract, in terms of the Regulations, is at issue and examine, by the application of the relevant statutory formula whether the employee is being paid the National Minimum Wage or not, and part of that calculation will involve considering relevant deeming provisions and exceptions that bear upon the calculation.

14. This case was, by agreement, a case involving a contract that provided for salaried hours work. In terms of categorisation, by Regulation 4(1)(a) that is work done under a contract to do salaried hours work. Then, under Regulation 22, a method is set out for determining the hours of salaried work in that context, which is essentially that of a contract that stipulates basic hours, and the process is that of deciding by what number of hours the basic hours have been exceeded. At the end of her Judgment Employment Judge Hawksworth, having reached conclusions about the nature of the contract, produced a Schedule as to the hours that had been worked. To a greater or lesser extent it was accepted by both parties that the Schedule may be erroneous irrespective of the outcome of the appeal. Mr Wyeth submitted this may raise a new point not taken below, and if it is necessary to do so, I will return to that at a later time.

The Contractual Documents

15. A summary of the Claimant's terms and conditions of employment stipulated:

"Your normal working week will be 39 hours. Included in this role is up to 30 hours per month for regular (termly/annually) activities. Hours worked in addition to this or at weekends will be paid at the appropriate overtime rate."

16. The letter to which I have already referred offering the Claimant his appointment was in similar terms:

"Normal working week: 39 hours, including 2 hours per week contractual overtime. In addition you are required to work up to 30 hours per month Monday to Saturday in accordance with the scheme for Site Controllers, a copy of which is available in school for reference. No additional payment is made for these duties."

17. Employment Judge Hawksworth thought this contained an element of inconsistency. It does not seem to me, however, that even if that is so it has any material bearing on this case. Moreover, it was accepted at the Employment Tribunal that there had been a subsequent oral variation agreed between the parties that the unpaid overtime would be restricted to Monday to Friday, not Monday to Saturday as was said in the letter of appointment. Again, this is not really of much moment so far as this appeal is concerned.

18. The reference in the quotation above from the letter of appointment to the scheme for site controllers is to a relevant local authority document that reads:

"The Site Controller can be required to work from Monday to Saturday of each week and 30 hours a month in addition to the standard 39 hours a week for the salary paid …

The key aspect of the role is to ensure that the school buildings and site are maintained to a high standard.

The post holder is responsible for the security of the school site. The Site Controller and the Head teacher are the first persons to be contacted in the event of an emergency. The Site Controller may undertake regular patrols of premises and grounds and take appropriate measures to secure the security of premises, staff and pupils. The post holder monitors fire and intruder alarm procedures and is a key holder of the school. A residence may be provided adjacent to the school site to facilitate this aspect of the work."

19. Because that document was referred to in the letter of appointment, it seems to me likely that it was incorporated by reference into the written part of the contract, although Employment Judge Hawksworth does not make any finding about that and it is to be observed that it is not actually a document as between the two parties to the contract. Nevertheless, it seems to me to illustrate that she was - as I would say, quite properly - examining the factual matrix with a view to trying to ascertain what the material terms of the contract were.

20. In practice, the Claimant worked split shifts each day. The first of which was between 7.00am and 10.00am, and the second between 3.00pm and finishing times that varied between 7.00pm and 9.30pm. At some point he "was told that he had to be contactable and within a reasonable distance of the school" during the day after the end of his first shift and before his second shift started (see the Reasons at paragraph 25). The Employment Judge also noted that there had been a key list of duties in a written job description sent to him together with the application form for the job of Site Controller. As with the scheme for Site Controllers, if that was not a contractual document of itself, it seems to me that it was a sufficient part of the factual matrix for it to be a relevant piece of evidence in determining what the material terms of the contract were. The first two key duties set out were:

"1. Ensure that buildings and the site are secure, including during out of school hours and take remedial action if required.

2. Act as a designated key holder, providing out of hours and emergency access to the school site."

21. Reference is also made to a person specification, again without defining whether that was part of the contractual terms or evidence casting light on what the contractual terms might have been. There it was stated that the Claimant, at this stage the applicant for the job, had to have the ability to work outside normal school hours "usually within the hrs 7am and 7pm", that he had to "Live on site" and that he had to be "proactive in the management of the site".

The Oral Part of the Contract

22. At paragraph 22 of the Written Reasons Employment Judge Hawksworth recorded the following:

"22. The Claimant was told at interview and when he took up his post that he was expected to be available to respond to any situation day or night, and that this was the reason on-site accommodation was provided. He was told this by his predecessor, Mr Peers, by the then head teacher Mrs Gare and by Mr Wharpshire, the chair of the governors. Mrs Gare also told him that he had to remain contactable during the day in case he was needed."

23. The Claimant was provided with a mobile phone, and as a result of an auto-dialler on the alarm system he would be contacted first if an alarm was activated. In any event, he could hear the alarm from his bungalow (see paragraph 28 of the Reasons). Also, he knew that the Head Teacher and the Deputy Head Teacher, who were also on the auto-dialler system, would switch off their mobile telephones during the night (see paragraph 23 of the Reasons) and that neither of them regarded it as part of their duties to respond to any alarm (see paragraph 28 of the Reasons). Somewhat later in the history it seems that the Head Teacher came off the auto-dialler system, something to which I shall come in a moment. From paragraph 24 of the Reasons it appears he:

"24. … was required to deal with any security issues or emergencies, for example if he heard an alarm going off in the school, if he was called on the alarm auto-dialler, if the police attended the school site, or if there were intruders. He also had to deal with other matters during the day at weekends, such as dealing with contractors on site, or clearing snow. …"

24. From the evidence Employment Judge Hawksworth seems to have concluded that in practice there was an alarm call during the night about twice a month and there were occasions when he was called on his mobile during the evening. On some of those occasions it appears that he was away from the School, either at the local pub or at the cinema, and then he was obliged to come back to the School. On two occasions he had been called back whilst watching his son playing football at the weekend (also set out at paragraph 24 of the Reasons). After the end of his first shift and before his second shift started the Claimant was usually at home, and he (see paragraph 25 of the Reasons):

"25. … was frequently asked to carry out tasks during the school day in the time between his shifts, for example when the hot water ran out, when the toilets were blocked or to clear up when a child had been sick."

25. As Employment Judge Hawksworth found, the practical effect of all of this was that he had to restrict his movements and, apart from one occasion when he had permission to attend a concert in Oxford during the evening and another when he went to Reading, some ten miles away, to buy equipment, he would never be very far away from the School. Later there were some occasions when he stayed overnight with friends in Amersham (see paragraphs 26 and 27 of the Reasons in respect of all of those matters). On the few occasions when he did stay overnight with friends this had been pursuant to discussions, some by email, between the Claimant and the bursar. These had resulted in an agreement that he could stay away overnight at weekends but he must give 14 days' notice of intention to do so. It was made clear that he was not allowed to stay away overnight during the week (see paragraph 35 of the Reasons).

26. There was a slight interpretative difference between counsel as to whether or not after that had been made clear he was restricted in terms of what he could do during the evenings, but, looking at the Reasons of the Employment Tribunal overall, it does not seem to me that it was ever found to be a requirement that he stay at home weekday nights. The requirement was, as Employment Judge Hawksworth found, that he did not go far away and could return quickly. As I have already mentioned, she also found these various restrictions curtailed his social life, interfered with his hobbies, put a strain on his domestic relationship - which came to an end as a result - and had an adverse effect on both his physical and mental wellbeing (see paragraph 27 of the Reasons).

27. All of those findings were made, in my judgment, by Employment Judge Hawksworth in order to decide what the oral terms of the agreement were or at least to illuminate them. Likewise, the Head Teacher gave evidence about what was expected of the Claimant (see paragraph 29 of the Reasons). She said that:

"29. She accepted that security cover was part of the Claimant's duties, and that this could require duties to be outside normal hours. She said he was living on site, and if he was able to respond, the expectation was that he should respond, because of his proximity. He was asked to provide notice if he was going to be away, because he was the school's only site controller and he had a residence on the site. If there was an emergency and the Claimant did not deal with it, the Respondent would have sat down with him and considered the circumstances as to why he had not done so."

28. In this context also some difference of interpretation arose as to what that might mean. It seems to me that there is not really much difference between the concept of this being a discussion ultimately about discipline and the concept that discipline might only arise if he had missed an emergency. It does not seem to me that by failing to be more precise semantically, Employment Judge Hawksworth fell into any error in that respect.

29. In June 2013 the Claimant had a discussion with the Deputy Head Teacher and a HR manager from the local authority about his working hours, and he raised a grievance about his working hours in September 2013 (see paragraphs 36 to 43 of the Reasons). In rejecting the grievance it was said by the Head Teacher (see paragraph 42) that:

"… it is the school's expectation that [the Claimant] be on-site for the majority of time as his job provides a property on-site at a highly subsidised rate. However, going off-site occasionally for evenings and weekends is perfectly acceptable if notice is given."

30. This might be regarded as bearing on the issue of what he was able to do at weekends, but it seems to me, again looking at the overall shape of the Judgment and Reasons of Employment Judge Hawksworth, that she did not find that he was required to give notice if he was going to be off site during weekday evenings. Following the rejection of his grievance, the Claimant then appealed to the Head Teacher, who had been involved in the grievance itself, and then he made a further appeal to the Governors when she rejected his grievance; they too rejected it. At paragraph 45 of the Written Reasons some of the terms of that rejection were set out by Employment Judge Hawksworth:

"It is certainly clear that living on site means you may be called upon in emergencies outside of your working hours, but these have been ad hoc and there is no evidence it was a requirement that you must be available to deal with them at all times. When you have been called, time off in lieu has been given to compensate for time…

At the hearing you said you had been told you must keep your mobile phone switched on at all time [sic] by the previous bursar, but the panel was unable to find any evidence to support this. [Mrs Featherstone-Wright, the Head Teacher] said you had been told to have your phone with you when not on duty but not 24/7. Therefore there is no evidence to suggest it was a requirement of the role to be contacted 24/7. If you had not answered the phone then someone else on the list would be contacted. It is accepted you are the first point of contact but not the only point of contact."

31. Although she does not make this entirely clear, it seems to me that Employment Judge Hawksworth did not accept all of that. The Head Teacher and Deputy Head Teacher did not answer their telephones after midnight, and the grievances may have been rejected but during the course of the grievance procedure the School entered into a contract with a security company whose telephone number was then placed on the auto-dialler system. In effect, this meant that the Claimant need not respond to all emergencies (see paragraph 44 of the Reasons), but it seems to me fairly clear from Employment Judge Hawksworth's findings that up until that alteration was made to the system the Claimant was not only the main point of contact and main responder, but to all intents and purposes the only one.

Findings of Fact

32. Employment Judge Hawksworth found that the School had "an expectation that the Claimant would be available outside his contracted hours" (see paragraph 47 of the Reasons). Although she regarded the offer letter as being inconsistent, something I have mentioned already (see paragraph 48 of the Reasons), she found it to be (at paragraph 49):

"49. … clear from the letter and the conduct of the parties during employment that the Claimant could be required to work 30 hours unpaid overtime per month and also that he was required to be available out of hours to deal with call outs and emergencies."

33. Employment Judge Hawksworth also found that the Claimant was contractually obliged to live in the accommodation on the School site (see paragraph 50 of the Reasons), and at paragraph 51 of the Reasons she found that although his presence "was not required to comply with any statutory or regulatory requirement", it was:

"51. … regarded as a deterrent, and he had to remain available at (or within a short distance of) his bungalow, the place determined by his employer, in case he was needed to respond to the alarm, speak to the police, check for intruders or deal with other emergencies. He was expected to carry out patrols of the site to check for intruders."

34. She also noted, at paragraph 52 of the Reasons, that the Claimant had been told to remain contactable, had been called back to School outside his working hours, was not permitted to stay away overnight during the week and had to give 14 days' notice if he wanted to stay away at weekends. She also found that until December 2013 there was really nobody else available to deal with emergencies and that the Claimant knew that in practice it was he who must respond. Moreover, she concluded that the School had been consistent because the Claimant had been told at interview that he was expected to be available to respond to any situation day or night and this had been confirmed by the Head Teacher during the grievance hearings (see paragraph 53 of the Reasons). She found that in practice he had been away very little and his movements were restricted. She found that had he failed to deal with an alarm call relating to an emergency (see paragraph 55 of the Reasons):

"55. … this would have been followed up by the Respondent, who would have sat down with him to consider the circumstances. …"

35. Although it was the School's case that the Claimant was not required to be available 24 hours a day and 7 days a week to deal with emergencies, that had never been said to him by the School until the grievance procedures. After analysing all of that at paragraphs 55 to 58 of the Reasons, Employment Judge Hawksworth made this finding at paragraph 59:

"59. … the Claimant was required to be available outside his normal working hours both during the school day (between his shifts) and out of school hours to deal with security, emergencies and other matters. His movements were restricted as a result."

36. Her summation of it all is set out at paragraph 60 in these terms:

"60. The Claimant's working arrangement could be described as 'on call' working. This is not a term used in either the WTR or the NMWR and, although a useful shorthand, may not be helpful as a tool of analysis. (Whittlestone …). What needs to be considered is whether, when he was required to be available for work during the period between shifts in the school day and out of school hours, the Claimant was in fact working for the purposes of the WTR and the NMWR."

The Law

37. As will be appreciated, the last sentence of paragraph 60 quoted immediately above is in essence a self-direction by Employment Judge Hawksworth as to what she needed to consider. It is not suggested by either counsel that was the wrong question or the wrong self-direction. I have had placed before me a significant number of authorities, some 11 in total. I think a quite considerable number of authorities were cited to Employment Judge Hawksworth. There is no doubt that some of them deal with matters of principle and some of them have factual backgrounds with a greater or lesser resemblance to the instant appeal. In my judgment, it is not a good basis for this jurisprudence to proceed by analogy. For that reason, I do not intend to undertake an analysis of all the authorities.

38. There is another reason for this. Up to a point in 2011, that task had already been undertaken by HHJ Reid QC in the case of South Manchester Abbeyfield Society Ltd v Hopkins [2011] ICR 254. It is true that since then there have been another four authorities, two of them decided by divisions of this Tribunal presided over by the then Presidents. Nevertheless, HHJ Reid QC's synopsis is, as it seems to me, accurate, and I adopt it. Cases up to then fell into the category of those in which the employee was found to be contracted to work if not 24 hours a day, 7 days a week for considerable periods of time, although in practice it was quite clear that during those periods of time there were periods when he or she was not working, using that term colloquially. Not surprisingly, there are cases that fall into the other category, where it was held that although the worker had to be available to carry out work the contract did not mean that at times when that worker was holding himself or herself available for work he or she was actually working. This dichotomy, as Mr Wyeth put it, has continued in the subsequent cases, something that I do not find in the least surprising.

39. I do think I should look, however, at the two decisions of the respective Presidents of this Tribunal, namely the case of Wray v J W Lees & Co (Brewers) Ltd [2012] ICR 43, a decision of this Tribunal presided over by the then President Underhill J, and the Whittlestone case to which I have already referred presided over by the then President Langstaff J. I shall first, however, go back right to the beginning to consider the Judgment of the Court of Appeal in British Nursing Association v Inland Revenue [2002] IRLR 480; the Judgment of the Court was given by Buxton LJ. It is a case that the Court of Appeal did not appear to find very difficult to resolve. The Judgment is short, and the clarity of expression is entirely characteristic of Buxton LJ. This is the case of a nurse employed by a nursing agency - if I can put it in that way - that provided bank nurses for nursing homes and similar institutions on an emergency basis. The service provided involved a telephone booking system operating 24 hours a day. During the night the telephone calls were not taken at the premises of the nursing agency but were diverted to the homes of duty nurses who answered the telephone and dealt with the enquiries. The Judgment makes it clear that this was a question of deciding if and when those duty nurses were working. At the end of paragraph 11 Buxton LJ identifies the issue in these terms:

"11. … The question is, however, whether they were nonetheless working when waiting to answer the telephone."

40. This was a question that he thought was straightforward to answer not only because it had been open to the Tribunal to conclude that was the case but, as he put it at paragraph 12:

"12. … 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. …"

41. He also dealt pragmatically, it might be said, with the issue of the oddity that there might be few or perhaps no telephone calls and indeed the duty nurse might well be asleep or at least doing whatever he or she wished to do, which would have nothing whatsoever to do with the nursing agency. In his Judgment he says this 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."

42. How far that is an answer to all oddities or queries that might arise is perhaps a matter that needs to be decided in this case. In Wray this Tribunal, presided over by the then President Underhill J, was concerned with an appeal in the case of a manager of a public house who lived at the premises in free accommodation. She was there, as the Employment Tribunal found, as a security measure, but she was able to come and go as she pleased, and the Employment Tribunal concluded that she was not working simply by being at the premises. The Employment Appeal Tribunal dismissed the appeal. In doing so, the President at paragraph 10 analysed the written part of the contract (see page 48), and he concluded that her ability to go out in the late evening or even in the middle of the night was entirely consistent with the conclusions of the Tribunal and its finding that the Claimant could "pop out". Having referred to the Judgment of HHJ Reid QC in the Hopkins case to which I have referred, Underhill J said this at paragraph 12:

"12. We would venture, for the purpose of the issues which arise in the present case, slightly to expand that summary without, we think, differing in any way from what Judge Reid QC is saying.

(1) There are cases where an employee is required during the night to perform certain tasks or undertake certain responsibilities, such as dealing with phone inquiries, as in British Nursing Association … or undertaking the responsibilities of a night-watchman, as in Scottbridge Construction Ltd v Wright [2003] IRLR 21. If that is the nature of the job the employee is in truth working throughout the period in question, even if actual tasks only come up intermittently or infrequently and even if he or she is free to sleep in the intervals between those tasks. In such cases paragraphs (1) and (1A) of regulations 15 and 16 do not come into play at all: as explained in Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172, the role of paragraph (1) is to deem the employee to be working in periods when he is in fact not working but is required to be available to work (subject to the two exceptions identified below).

(2) In other cases the employee is not required to work but is required to be at or near his place of work and available to work: the usual shorthand for such cases is "on call", though that term is not used in the Regulations. That is the kind of case where the employee is deemed to be working by paragraph (1) of regulations 15 and 16, but subject to (a) the "at home" exception in paragraph (1) itself and (b) the "sleeping facilities" exception in paragraph (1A).

The distinction between the two classes of case may be difficult to draw in some particular factual situations. …"

43. It is perhaps sensible to treat the first paragraph, paragraph 12(1), just quoted above with a slight degree of caution. As expressed, that, it seems to me, is not entirely consistent with the way in which Buxton LJ identified the issue in the British Nursing Association case. It is not whether the employee is required during the night to perform tasks or undertake responsibilities; it is whether, by the terms of the contract, the employee is working during the night with the responsibility of undertaking tasks and responsibilities if they arise. With that qualification, the analysis, as one might expect, is entirely correct, but, as Langstaff J pointed out in the Whittlestone case, distinctions between core hours and other hours are not necessarily analytically helpful (see paragraphs 53 to 56). It is certainly not necessary to establish what work is actually done; the question is what the contract provides for.

44. Likewise, although not expressly dealt with in that passage of the Judgment, it seems to me that there is a need to be careful about using expressions such as "on call" and "available for work". The issue is: does the contract provide for the period in question to be part of the employee's working hours? This is a matter of construction against the particular factual matrix of the written terms of the contract, the oral terms of the contract and the evidential material that might be used to supplement both.

45. Employment Judge Hawksworth, having identified the question at paragraphs 3, 9 and 60 of her Judgment, quoted from paragraph 12 of the Judgment of Underhill J in Wray. It is not, however, seriously contended that by doing so she misdirected herself. She was at risk, submitted Mr Milford, of confusing the issue of what the contract provided for with whether there were requirements to perform tasks or undertake responsibilities, having regard to the language used by Underhill J in the first sentence of paragraph 12(1).

46. It was accepted at the outset by counsel that I am not concerned with the WTR or her analysis of the law relating to the WTR, and I repeat that she herself understood the danger of overlap between what are not in fact consistent statutory regimes. There is, however, Mr Wyeth submitted, a single sentence in the findings relating to the WTR aspect of this case that does have some relevance. It is the first sentence at paragraph 87, which reads:

"87. I conclude that the Claimant was required to be present and remain available to his employer (at his employer's disposal) overnight and at weekends. …"

With the reservation that is not strictly speaking an NMWR issue, I accept that it does have some relevance as a conclusion.

The Employment Tribunal's Conclusions

47. The conclusions that Employment Judge Hawksworth reached in relation to the NMWR are set out specifically at paragraphs 99 and 100, although before turning to them it is worth reminding oneself that at paragraph 97 she said that:

"97. … the key question is whether the Claimant was required between his split shifts, during the night and at weekends to perform certain tasks or undertake responsibilities, like the Claimants who dealt with phone enquiries, as in British Nursing Association … or the night-watchman, as in Scottbridge … In these cases, because of the nature of the job, the employee is in truth working throughout the period in question, even if actual tasks only come up intermittently or infrequently and even if he or she is free to sleep in the intervals between those tasks."

48. Then she recites at paragraph 98 what the Claimant's case was, and I understand all of that to be a recitation of the Claimant's case. It reads:

"98. In the Claimant's case, even though he was at home (and able to sleep) overnight and during weekends, he was required to deal with anything that might arise out of hours. He had significant responsibilities during these periods."

49. It seems to me that she accepted that in the following two paragraphs, paragraphs 99 and 100. These read:

"99. Being available to respond to security issues and emergencies was part of the Claimant's duties, that was the nature of the job he was performing. The security of the school site was a key part of the Claimant's job description and terms and conditions. He was expected to check the site for intruders. His presence was regarded as a deterrent, and he had to remain available at (or very near to) his bungalow to respond to the alarm or deal with other emergencies. He was not permitted to stay away from the school site in the week, and had to give 14 days' notice so that cover arrangements could be made if he was going to be away at a weekend. He would have been spoken to if he had failed to respond to an incident.

100. In relation to the period between the Claimant's shifts, he was required to attend the school when called on to deal with matters such as heating and water problems, and cleaning. He had no way of knowing if or when he would be called upon. His site controller responsibilities continued during the period between his shifts. He was working even though he may have been called on only intermittently during these periods to perform actual tasks."

50. Her Judgment is encapsulated in a single sentence, which constitutes paragraph 101 and reads:

"101. For these reasons I conclude that the Claimant was working (salaried hours work) for the purposes of Regulation 4 of the NMWR as well as the WTR when he was required to be available between his two day shifts, at night and during weekends."

51. It is that, I think, which connects back to paragraph 87 and the passage that I have quoted in her analysis of the WTR aspect of the case. She was at pains at paragraph 102 to distinguish the case of Wray. There, as it seems to me, she did fall into the approach that these cases can proceed by distinction and analogy. The last two sentences read as follows:

"102. … [Ms Wray] was allowed to leave the premises at any time, and would only have have [sic] to deal appropriately, by calling the emergency services for example, if anything untoward occurred while she was there. This very limited responsibility was different from the responsibility which fell on the Claimant for whom the security of the site and the need to deal with alarm calls and other matters out of hours were part of his duties."

52. I do not think this is a useful way in which to proceed, as I indicated at the start of my analysis of the law. The issue is not how much the case differed from Wray; the issue is what the contractual provision was. Even so, Mr Milford does not regard that as the significant error made in this case. Having found as she did at paragraph 101, at paragraph 103 Employment Judge Hawksworth dealt with Regulation 16(1), which she said was not relevant. There are some words in parentheses in the last sentence:

"103. … (In any event, as the Claimant's home was on or near the school site, Regulation 16 would not have applied to him.)"

53. These have not been discussed in this appeal and do not arise in this appeal but are matters that if necessary, as it seems to me, may need to be revisited if there is a remission. She then deals with the question of her Schedule, another matter that, as I have already said, is accepted by both parties not to be perfect.

Submissions, Discussion and Conclusions

54. Mr Milford's real attack is on the factors taken into account at paragraphs 99 and 100 or not considered at all in those paragraphs, something he submits indicates either an error of approach or, he submits, is an indication that the Employment Tribunal has reached a conclusion that no reasonable Tribunal properly directing itself on the evidence could have reached. He sets these out in his excellent skeleton argument at paragraph 22, dealing with factors pointing away from the conclusion, and paragraph 23, dealing with matters that have been taken into account in, largely, paragraphs 99 and 100 that he says are really not supportive of the conclusion arrived at. In his equally cogent skeleton argument Mr Wyeth deals with each of those. These matters were deployed with equal skill in the oral arguments before me.

55. The most significant seems to me to be the fact that Employment Judge Hawksworth has not engaged with some of the significant findings made by her in arriving at her conclusion at paragraph 101 and in the reasoning process that precedes it at paragraphs 99 and 100. Given that this is a careful analysis by her of the factual material and a correct approach in terms of law, as it seems to me, I have considered whether the omission of a consideration of the significance of being away overnight for the weekend, being out at a concert, being at the pub, being at football matches and so on, are really matters that have any traction so far as the reasoning process is concerned. She has not factored into her Schedule the obvious, namely that if the Claimant was away over a weekend, then by no stretch of the imagination can he be regarded as having been working during that weekend. Can that be regarded as simply a minor blemish, or does it, as Mr Milford submits, reflect back on the soundness of her reasoning process by which she construed the contract as requiring the Claimant to be present and his working hours to be 24 hours a day, 7 days a week?

56. I have reached the conclusion, not without some considerable hesitation, given the care taken by Employment Judge Hawksworth, that a complete analysis of the contractual position should have dealt with why those matters were of no significance. In my judgment, it is not good enough to work backwards from the conclusion and the finding and say that therefore she has simply regarded them as being of little account. They may not be many in number, and they may not make a huge impact on the Schedule, but it seems to me that they cannot be described as de minimis, and I do not think that one can simply overlook the fact that they have not been part of her analytical process as to why she is able to conclude that the Claimant was working when he was required to be available between his two day shifts, required to be available at night and during weekends. Perhaps this is explicable in terms that he was able with permission at weekends and without permission at night and on other occasions to be away from the premises. .

57. Accordingly, I have reached the conclusion that the Employment Judge has left out of account in her analysis of the material terms of the contract important evidential material that ought to have been explained. This is not a question of inadequacy of reasoning. Mr Wyeth submitted that the appeal was not brought on this basis, and Mr Milford accepts that he has not criticised the Employment Judge's reasoning. Nor does it seem to me that this is a matter of perversity. This is a matter of not taking account of potentially relevant evidential material in the identification of the material terms of the contract. There may or may not be some way of reconciling the conclusion she has arrived at with these factual pieces of evidential material but I do not think, however, that I should or can decide that myself. Accordingly, it seems to me that this case ought to be remitted.

Disposal

58. Issues arise as to the terms upon which this case should be remitted, it being accepted by counsel that this appeal is not within the rather narrow category left by Laws LJ in Jafri v Lincoln College [2014] EWCA Civ 449 where this Tribunal can itself reach any sort of conclusion. The factors set out in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763 by the then President, Burton J, at paragraph 46 of the Judgment are said to be relevant in this case. Firstly, it is said by Mr Milford that time has passed. It is also said that this is a case where there should be a remission rather than a Burns v Royal Mail Group plc [2004] ICR 1103 / Barke v SEETEC Business Technology Centre Ltd [2005] EWCA Civ 578 reference back.

59. I perhaps ought to deal with that first. Mr Wyeth submitted there ought to be a Burns/Barke reference back to the Employment Tribunal for further information, an expansion of reasoning. Mr Milford's objection to that was that this is not an inadequacy of Reasons appeal and has not been allowed on the basis that the reasoning was inadequate. I accept that proposition. It does not seem to me that it would be appropriate. In any event, the matter has come a very, very long way, even if this were an inadequacy of Reasons case, for the case to now go back to improve it semantically, but my main reason for rejecting Mr Wyeth's submission on this point is that it does not seem to me to be an appropriate way to dispose of the matter.

60. So far as remission is concerned, Mr Milford submitted that it ought to go back to a differently constituted Tribunal for a complete rehearing. There has been the passage of time - this is 15-16 months old - and he says this is a case where one should be careful because this might be a second bite of the cherry. Mr Wyeth submits that this ought to go back to Employment Judge Hawksworth, for a number of reasons: that she dealt with the WTR matter that and the NMWR issue, the subject of this appeal, are intimately connected, and if anybody is going to untangle it that ought to be Employment Judge Hawksworth. She has already heard this case, and she has the Notes of Evidence; so, he submitted, the passage of time is not a problem.

61. Looking at the factors identified by Burton J, proportionality is a relevant consideration and always a relevant consideration. It does not seem to me, looking at the matter from the point of view of proportionality, that the holding of a complete rehearing should be entertained unless there is no other way of approaching the matter. Looking at another of his considerations, it does not seem to me that this is a wholly flawed decision, and for that reason also I would incline towards Employment Judge Hawksworth looking again at this matter in terms of considering the evidence that she has already heard, hearing further evidence if it is necessary to do so, a matter that it seems to me I ought to decide rather than leaving it to Employment Judge Hawksworth if I remit it back to her. I accept that she has reached a conclusion, but, of course, Burton J also emphasised that there is judicial professionalism to be taken into account in dealing with these matters. It seems to me that it is proportionate and that although she has looked at it before, her judicial professionalism can be relied upon to look at these matters again, set them into the context of the existing evidence and any new evidence and to apply the approach that she has already applied, which nobody suggests is erroneous, in explaining whether those factors make any difference or not. That she has decided the working time point, and that that matter may have to be altered if she comes to a different conclusion, is another factor, as also, to my mind, is the factor that there is plainly something wrong with the Schedule and that that is a matter that ought to be investigated.

62. I shall direct that the matter is remitted to Employment Judge Hawksworth to consider the factors that I have identified in the Judgment, to hear evidence on those factors, to hear evidence also if necessary on questions that relate to the Schedule and to reach a decision as to whether her conclusion at paragraph 101 of the Judgment stands or falls to be altered; and, in the light of the evidence, as to whether any alterations need to be made to the Schedule. On those directions, the matter will be remitted back to her.

Application to Appeal to the Court of Appeal

63. It does not seem to me reasonably arguable that I am wrong to say that those are factors that in identifying the material terms of the contract should not have been left undiscussed or left out of account. In those circumstances, Mr Wyeth must see if he can interest the Court of Appeal.

Employment Claims without a Lawyer 2nd edition published March 2018