Martin v Southern Health & Social Care ... [2009] NIIT 1151

THE INDUSTRIAL TRIBUNALS

CASE REF: 1151/08 IT

CLAIMANT: Clare Martin

RESPONDENT: Southern Health & Social Care Trust

DECISION

The unanimous decision of the Tribunal is that the Tribunal’s determination of the issues is as follows:-

(a) Had the claimant received her entitlement to a rest break under Regulation 12 of WTR? See the answers to the questions below.

(b) Did the claimant’s breaks constitute working time under WTR? If so, was the claimant entitled to be paid for her breaks or was she entitled to paid time off in lieu for all her rest breaks?

Yes to the first part of the question. In respect of the second part of the question, insofar as these breaks are to be deemed working time, the claimant would have been entitled to paid time off in lieu thereof.

(c) If so, did the respondent’s failure to pay the claimant for her rest breaks or the respondent's failure to permit the claimant to take paid time off in lieu for her rest breaks amount to an unauthorised deduction from wages?

The Tribunal declines to answer this question for the reasons stated.

(d) Did Regulation 21 (c) (i) of WTR apply in the circumstances of the claimant’s case?

Yes.

(e) If Regulation 21(c) (i) did apply in the circumstances of the claimant’s case, had the claimant received her entitlement to compensatory rest under Regulation 24 of WTR?

No, to the extent that, as applicable, the claimant's work breaks are to be deemed working time and compensatory rest has only been afforded for interrupted work breaks.

(f) If Regulation 21(c) (i) did apply in the circumstances of the claimant’s case, was the claimant entitled to paid time off in lieu as compensatory rest for all her breaks because she was always at a risk of interruption?

Insofar as these breaks are to be deemed working time, the claimant would have been entitled to paid time off in lieu thereof.

(g) If so, did the respondent’s failure to permit the claimant to take paid time off in lieu as compensatory rest for all her rest breaks amount to an unauthorised deduction from wages?

The Tribunal declines to answer this question for the reasons stated.

Constitution of Tribunal:

Chairman: Mr J V Leonard

Members: Mr J B Kinnear

Mr P McKenna

Appearances:

The claimant was represented by Mr G Grainger, Barrister-at-Law, instructed by Thompsons McClure, Solicitors.

The respondent was represented by C Hamill, Barrister-at-Law, instructed by the Directorate of Legal Services.

1. By claim form dated 19 August 2008 received by the Office of the Tribunals on that date, the claimant claimed that the respondent had, on an ongoing and continuing basis, breached her rights under the Working Time Regulations (Northern Ireland) 1998. Further to that, or in the alternative, the claimant claimed that she had suffered an ongoing and continuing unauthorised deduction from wages. The claim as set out also alluded to breach of the provisions of the Employment (Northern Ireland) Order 2003 and Regulations made thereunder (the latter relating to the statutory grievance procedure).

2. In a response to the claim, the respondent, by response form dated 2 October 2008, denied the claimant’s allegations in their entirety. In particular it was denied that there had been any breach of the Working Time Regulations (Northern Ireland) 1998, nor any unauthorised deduction from wages. It was further denied that there was any breach of the statutory grievance procedure.

The issues to be determined

3. In written submissions made on behalf of the claimant, the claimant’s representative identified the following as being material issues in the case:-

(a) Had the claimant received her entitlement to a rest break under Regulation 12 of the Working Time Regulations (Northern Ireland) 1998 (for convenience these said 1998 Regulations are hereinafter referred to as “WTR”).

(b) Did the claimant’s breaks constitute working time under WTR? If so, was the claimant entitled to be paid for her breaks or was she entitled to paid time off in lieu for all her rest breaks?

(d) Did Regulation 21 (c) (i) of WTR apply in the circumstances of the claimant’s case?

(e) If Regulation 21(c) (i) did apply in the circumstances of the claimant’s case, had the claimant received her entitlement to compensatory rest under Regulation 24 of WTR?

(f) If Regulation 21(c) (i) did apply in the circumstances of the claimant’s case, was the claimant entitled to paid time off in lieu as compensatory rest for all her breaks because she was always at a risk of interruption?

(g) If so, did the respondent’s failure to permit the claimant to take paid time off in lieu as compensatory rest for all her rest breaks amount to an unauthorised deduction from wages?

4. Any issue regarding remedy in the matter, in the event that the claimant were to be successful in all or part of her contentions, was agreed to be reserved until after the Tribunal’s primary determination of the issues.

The Evidence

5. The Tribunal heard oral evidence from the claimant and from a Staff Nurse, Ruth Wright. The Tribunal also heard oral evidence from Mrs Kathleen McGoldrick and from Mrs Helen Walker. In addition to this oral evidence, files of documents were placed in evidence before the Tribunal, these consisting of some 440 pages in total and some additional documents were also introduced into evidence by agreement between the parties’ representatives in the course of hearing. Further to that, the Tribunal had the benefit of detailed written and oral submissions at the conclusion of the hearing; the Tribunal would like to express its gratitude to the respective representatives for the assistance given to the Tribunal in regard to the foregoing in reaching a determination in the matter.

The Tribunals Findings of Fact

6. The Tribunal was placed in the fortunate position where many facts were commonly agreed between the parties and there was comparatively little evidential or factual material directly in contention. On the basis of the oral and documentary evidence adduced, on the balance of probabilities the Tribunal determined the following material facts:-

6.1 The claimant is a qualified state registered nurse. After a period of time working as a nurse in England and in Scotland the claimant took up employment in 1993 in Northern Ireland as a temporary or a fixed term nurse in Craigavon Area Hospital for a period of time. The claimant gained permanent employment with Craigavon Area Hospital Group Trust (as it then was) with effect from 5 October 1998. The claimant was employed as a staff nurse, Grade “D” but was then re-graded to Grade “E” with effect from October 2001. At the material time which concerns the subject matter of this claim, the claimant had a permanent post confirmed with effect from 27 March 2008, contracted to work 25 1/2 hours per week.

6.2 As regards the claimant’s terms and conditions of employment, these varied from time to time throughout her professional career as a nurse employed in Craigavon Area Hospital for a number of reasons. However, ultimately the employment was subject to the terms contained within the “NHS Terms and Conditions of Service Handbook” (otherwise referred to as the “Agenda for Change…Service Handbook”), to which latter terms a number of references shall be made in this decision. It is sufficient to identify three relevant extracts at this stage. These provide as follows:-

“Part 3: Terms and conditions of service, Section 10: Hours of the working week

10.1 The standard hours of all full-time NHS staff covered by Agenda for Change will be 37 1/2 hours excluding meal breaks… . Working time will be calculated exclusive of meal breaks except where individuals are required to work during meals in which case such time should be counted as working time. “

“On-call staff

27.13 Staff who are on-call, i.e. available for work if called upon, will be regarded as working from the time they are required to undertake any work-related activity. Where staff are on-call but otherwise free to use the time as their own, this will not count towards working time. ”

“Rest breaks

27.15 Where the working day is longer than six hours, all staff are entitled to take a break of at least 20 minutes. Rest breaks must be taken during the period of work and should not be taken either at the start or the end of a period of working time. Employees should be able to take this rest break away from their work station. In exceptional circumstances and by agreement with the worker, where a rest break cannot be taken the unused entitlement should be claimed as a period of equivalent compensatory rest. Line managers should ensure that provision is made to allow compensatory rest to be taken. Existing local arrangements which already provide for breaks of more than 20 minutes (e.g. lunch breaks) will meet the requirements of this provision and no further action will be needed. ”

6.3 Further to the foregoing, the employment was subject to a number of policies stemming from Craigavon Area Hospital Group Trust procedures. These included a grievance procedure and various other settled procedures and practices, most of which were not in contention in this hearing.

6.4 As regards the identity of the claimant's employer, as part of a major reorganisation of Health & Social Services and Hospital Trusts which resulted in the merger of various trusts (which the Tribunal understands took place in or about April 2007) the former Craigavon Area Hospital Trust merged with other health and social care trusts to become the Southern Health and Social Services Trust. It is this Trust that therefore is the respondent to these proceedings; this is a substantial Trust employing in or about 12,000 personnel.

6.5 The claimant worked night duty based in the recovery ward of Craigavon Area Hospital. This involved her commencing her night duty shift at 8.45 pm and working through to 8.00 am on the following day. The settled procedures and practices mentioned above provided that there would be breaks amounting to a total of 1 hour and 15 minutes, unpaid. Thus there were to be 10 hours of paid employment in the course of a night duty shift, with unpaid breaks in respect of which the normal practice was to take one break of 45 minutes and another break of 30 minutes.

6.6 On account of the nature of the night duty working as a health service professional (and indeed it is noted that this was readily accepted by the claimant at hearing notwithstanding the position adopted by her as evidenced in earlier dealings with the respondent) there was no arrangement for nursing professionals to leave the hospital premises at any time during the course of this night duty shift working.

6.7 The Tribunal was provided with a floor plan of the Recovery Ward and surrounding area. From that plan, the Tribunal noted the location of the Recovery Ward and other rooms of material concern. If one exited the Recovery Ward and walked a short distance down the adjacent corridor, one came to a room designated on the floor plan as “Surgeon’s Rest Room”. However, the use of this room had changed. The room was actually used by nursing staff for taking work breaks and there were facilities for making tea. The floor plan also indicated other rooms in the vicinity of the Recovery Ward the use of which rooms had somewhat changed from the original designation. Adjacent to the room first referred to above (which for convenience the Tribunal will call the “Nurses’ Rest Room”), there was a room which had been originally designated as a “Nurses’ Rest Room”. However, that particular room was in practice used by the anaesthetists as a rest room. Nurses did not take their breaks in that room. On the other side of the Nurses’ Rest Room was a room designated for the “Ward Sister”. However that room had, it seems after the original designation, been divided into two rooms. One of these had become an office where there was a telephone. In practice, that latter room does not appear to have been much used by nursing staff for breaks.

6.8 Nurses could also take breaks at what might perhaps be referred to as the “quiet end” of the Recovery Ward. At this location in the Ward a curtain could apparently be pulled across in order for the nursing staff to gain some privacy during breaks. Nurses could also walk along the corridors in order to reach an area adjacent to the hospital canteen. The canteen was closed throughout the period of the nightshift. However, there was a vending machine at this location which supplied tea, coffee and sandwiches and there was a table and chairs. There was no evidence that the claimant spent any significant rest or break time at that latter location. In practical terms, therefore, the claimant spent the majority of her rest time in the Nurses’ Rest Room. From the floor plan it is noted that the Nurses’ Rest Room is in fairly close proximity to the Recovery Ward. For the purposes of this decision, the Tribunal regards the Recovery Ward as being the claimant’s work station.

6.9 It was readily agreed between the claimant’s and the respondent’s representatives that there could be (and often were) interruptions made to the claimant’s work breaks. However, the degree and the frequency of such interruptions was somewhat in contention. The reasons for such interruptions could be quite varied and ranged, on one hand, from the requirement from time to time to attend to significant medical emergencies to, on the other hand, perhaps dealing with routine requests for medical equipment or answering telephone calls. These latter telephone calls ranged broadly in nature from the serious to much more mundane matters. The claimant’s evidence to the Tribunal was that at least 50% of her work breaks were subject to interruptions of some type. There was no work system for keeping written records of interrupted breaks nor did the claimant herself choose to maintain any such written records. Therefore the Tribunal, in determining the degree of frequency of such work break interruptions, was dependent upon the claimant’s own oral evidence and also some additional evidence from other witnesses in the case. Further to that, there was some documentary evidence concerning a questionnaire survey instituted by the respondent as an initial exploratory exercise in June of 2007 concerning issues relating to rest breaks. Although the respondent’s submission was that, for various reasons, the survey results ought to be treated by the Tribunal with some caution, the Tribunal does note, attaching proper weight to this evidence, that nothing appeared to emerge from the results of the questionnaire survey that clearly contradicted the claimant’s evidence concerning frequency of possible interruption.

6.10 The hospital maintained a book called a “time owing book”. In that time owing book any member of nursing staff was able to enter a record of time owing which might relate to such matters as, for example, attending training courses in respect of which time could be recorded in the time owing book and then be subsequently taken in lieu. The time owing book was also used, to take another example, if a nurse was prevented from taking a break on account of some medical emergency that had arisen. The practice was that the time recorded in that time owing book would be afforded to the nurse who had been unable to avail of the break at some future opportunity. As a clear illustration of this practice, one witness in the case, Staff Nurse Ruth Wright, gave evidence to the Tribunal about the shortage of theatre nurses which resulted in Staff Nurse Wright recording a substantial amount of time owing in the time owing book. Staff Nurse Wright explained to the Tribunal how she was entitled to take time off in lieu as and when the opportunity arose. The documentation in respect of this practice was inspected by the Tribunal and the substantial use by Staff Nurse Wright of the time owing book was noted.

6.11 Likewise, there was evidence of the claimant making her own records in the time owing book. The claimant, indeed, confirmed to the Tribunal that any time owing that had been recorded by her in the time owing book had resulted in a corresponding allocation of time in lieu in her favour. The claimant certainly, in her evidence to the Tribunal, took no issue with the fact that any time owing recorded by her in the time owing book had been the subject of full compensation by the affording to her of time in lieu.

6.12 It might be usefully remarked at this point that there was an endeavour on the claimant's part to present as part of her case some evidence concerning, in effect, discouragement of the use of the time owing book by management or by senior staff. It has to be said that the Tribunal did not discern any persuasive or compelling evidence that any significant or material amounts of time owing were discouraged from being recorded in the time owing book by management or senior staff. There was certainly no evidence of any concerted practice or policy applied by management against the proper and ready use of the time owing book by nursing staff nor was there any evidence of any failure to afford time in lieu in respect thereof.

6.13 In 2006, the claimant raised a formal grievance complaint under the applicable grievance procedure. The grievance issue related to a contention by the claimant that she was unable to leave the hospital premises during her unpaid break time. The claimant contended that payment ought to be made in respect of break time as the claimant was effectively “on call” during rest breaks. The outcome of that grievance matter, and of the subsequent appeal under the grievance procedure, was that the Trust confirmed that the established practice of the Trust, for health and safety reasons, was that night duty staff remained on the premises during night duty and that breaks were included within the normal working hours and were unpaid, unless there was some reason why they were unable to be taken, in which case time off in lieu was available. It was maintained by the Trust that there was no express or implied contractual right to be paid for such breaks and, in addition, under WTR there was no provision for payment for break periods. Furthermore, the Trust made reference to WTR provisions expressly providing for a range of circumstances where a worker’s activities involved the need for continuity of service in hospital establishments, where such workers could take an equivalent period of compensatory rest, as was the case concerning hospital nursing staff night working. The claimant did not take any further action notwithstanding the determination of this grievance (both at first instance and also upon the subsequent grievance appeal) against her.

6.14 Then, on the respective evenings of the 21 and 22 February 2008 the claimant was working on night duty in the Recovery Ward. She was on duty with one other staff nurse on both evenings. On both of these evenings the claimant was indeed able to take her work breaks by arrangement with other staff. Her breaks were uninterrupted on both evenings. The claimant spoke with the Night Sister/Bed Manager on both of these nights and she stated that she was concerned at the possible risk of interruption to her breaks due to the nature of the work. The claimant requested that cover ought to be provided in order to ensure that there was no risk of interruption to her breaks. However, the Night Sister/Bed Manager was unable to give her that requested assurance and apparently stated that the hospital was busy and cover could not therefore be provided in the manner requested. In consequence of this, the claimant completed documentation to claim payment for the work breaks which she had taken. She indicated that the reason for so claiming was that she believed that this constituted working time in respect of which she was entitled to be paid.

6.15 The respondent’s management refused to authorise payment for this claimed time on the basis that the contractual arrangements provided that such breaks were to be unpaid. By letter dated 16 March 2008 the claimant raised a formal grievance with the respondent on foot of the applicable grievance procedure. By letter dated 30 April 2008 Mrs Helen Walker, the respondent's Assistant Director of Human Resources (Acute Services) replied to the claimant (that is after some preliminary discussions had earlier taken place) indicating that the view was taken that these issues had been fully raised by the claimant during the course of her 2006 grievance complaint and resultant process. Mrs Walker reiterated the position of the respondent that had been previously indicated in 2006 and stated that this was not regarded by the Trust as constituting a fresh grievance. By letter dated 20 May 2008 received by the Trust on 30 May 2008, the claimant clarified that the matter was intended to be regarded as a fresh grievance relating to WTR and indicated an intention to lodge Industrial Tribunal proceedings in respect of alleged breaches of WTR and alleged unauthorised deductions from wages.

6.16 By letter dated 22 July 2008 Mrs Walker, on behalf of the respondent, wrote to the claimant referring to the earlier dealings and arranging a Stage 1 grievance hearing for 5 August 2008. That grievance hearing took place on that date and the claimant set forth her issues of grievance. By letter dated 11 September 2008 Mrs Walker wrote to the claimant confirming the outcome of the grievance hearing which was that the respondent had determined that the claimant was not entitled to receive payment or time off in lieu in respect of these break periods for the reason that the claimant did get her full breaks on the two nights in question (being 21 and 22 February 2008) and that these were uninterrupted on both occasions.

6.17 The claimant appealed this Stage 1 grievance and an appeal hearing took place on 18 December 2008 before a grievance appeal panel. By letter dated 4 February 2009, Mrs Vivienne Toal, the respondent’s Head of Employee Engagement and Relations, wrote to the claimant indicating the outcome of the grievance appeal. Mrs Toal’s letter set out in some detail the basis of the claimant’s grievance which, in summary, was that she had not received adequate rest breaks on the two nights in question, the 21 & 22 February 2008, as there was always a risk that she would be interrupted. In addition, she could not leave the respondent’s premises to have her rest break. The claimant believed that the respondent had breached WTR. Further, she believed that her rest breaks should be paid because there was always a risk that these would be interrupted and therefore she was of the opinion that she had suffered an ongoing and continuing unauthorised deduction from wages. Having set out these contentions, Mrs Toal’s letter confirmed that the grievance appeal panel had concluded that the claimant had received her full allocated rest breaks on the two nights in question and that these breaks were uninterrupted. Mrs Toal’s letter confirmed that the panel had given consideration to WTR and to the issue of the need for continuity of service in the care provided by hospitals and the equivalent period of compensatory rest which was to be afforded. The panel mentioned that neither the claimant nor Staff Nurse Wright (whom the claimant had called as a witness to support her case) had provided clear evidence of the frequency of times, while on night duty, that the breaks were actually interrupted. The panel remarked that, having examined the time owing book, it was concluded that the number of times when time owing whilst on night duty was recorded was fairly infrequent. For reasons fully set out in the letter it was confirmed that the grievance appeal panel had concluded that the rest breaks were not to be regarded as being working time and therefore that the claimant had no legal or contractual entitlement to be paid for these breaks and thus the grievance was not to be upheld.

6.18 After receiving confirmation of the outcome of this grievance appeal the claimant then brought these proceedings before this Tribunal.

The Applicable Law

7. In regard to working time, the Working Time Regulations (Northern Ireland) 1998 (as amended) (“WTR”) were introduced as a result of the Working Time Directive, Council Directive 93/104/EC, of 23 November 1993. Insofar as material, WTR provide at regulations 2, 10, 11, 12, 21 and 24 as follows:-

“ Interpretation

2. -(1) -.

(2) In these Regulations-

"rest period", in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;

"worker" means an individual who has entered into or works under …. a contract of employment;

"working time", in relation to a worker, means-

(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties,

(b) any period during which he is receiving relevant training, and

(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;

and "work" shall be construed accordingly;

(3) In the absence of a definition in these Regulations, words and expressions used in particular provisions which are also used in corresponding provisions of the Working Time Directive …. have the same meaning as they have in those corresponding provisions.

Daily rest period

10.-(1) An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer.

(2) - (3) -.

Weekly rest period

11.-(1) Subject to paragraph (2), an adult worker is entitled to an uninterrupted rest period of not less than 24 hours in each seven-day period during which he works for his employer.

(2) If his employer so determines, an adult worker shall be entitled to either-

(a) two uninterrupted rest periods each of not less than 24 hours in each 14-day period during which he works for his employer; or

(b) one uninterrupted rest period of not less than 48 hours in each such 14-day period, in place of the entitlement provided for in paragraph (1).

(3) -.

(4) For the purpose of paragraphs (1) to (3), a seven-day period or (as the case may be) 14-day period shall be taken to begin-

(a) at such times on such days as may be provided for for the purposes of this regulation in a relevant agreement; or

(b) where there are no provisions of a relevant agreement which apply, at the start of each week or (as the case may be) every other week.

(5) In a case where, in accordance with paragraph (4), 14-day periods are to be taken to begin at the start of every other week, the first such period applicable in the case of a particular worker shall be taken to begin-

(a) if the worker's employment began on or before the date on which these Regulations come into operation, on 23rd November 1998; or

(b) if the worker's employment begins after the date on which these Regulations come into operation, at the start of the week in which that employment begins.

(6) For the purposes of paragraphs (4) and (5), a week starts at midnight between Sunday and Monday.

(7) The minimum rest period to which an adult worker is entitled under paragraph (1) or (2) shall not include any part of a rest period to which the worker is entitled under regulation 10(1), except where this is justified by objective or technical reasons or reasons concerning the organisation of work.

(8) - .

Rest breaks

12.-(1) Where an adult worker's daily working time is more than six hours, he is entitled to a rest break.

(2) The details of the rest break to which an adult worker is entitled under paragraph (1), including its duration and the terms on which it is granted, shall be in accordance with any provisions for the purposes of this regulation which are contained in a collective agreement or a workforce agreement.

(3) Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one.

(4) -.

(5) -.

Other special cases

21. Subject to regulation 24, regulations 6(1), (2) and (7),

10(1), 11(1) and (2) and 12(1) do not apply in relation to a worker-

(a) where the worker's activities are such that his place of work and place of residence are distant from one another or his different places of work are distant from one another;

(b) where the worker is engaged in security and surveillance activities requiring a permanent presence in order to protect property and persons, as may be the case for security guards and caretakers or security firms;

(c) where the worker's activities involve the need for continuity of service or production, as may be the case in relation to-

(i) services relating to the reception, treatment or care provided by hospitals or similar establishments, residential institutions and prisons;

Compensatory rest

24. Where the application of any provision of these Regulations is excluded by regulation 21 or 22, or is modified or excluded by means of a collective agreement or a workforce agreement under regulation 23(a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break-

(a) his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and

(b) in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the worker's health and safety.

In regard to unlawful wages deductions, Article 45 (1) of the Employment Rights (Northern Ireland) Order 1996 (“the1996 Order) provides as follows:

“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".

Article 45(3) of the 1996 Order states:

"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".

The Court of Appeal in England in the case of Delaney –v- Staples (t/a De Montfort Recruitment) [1991] ICR 331, held that there was no valid distinction to be drawn between a deduction from a sum due, and non-payment of that sum, as far as the relevant statutory provision was concerned.

Finally, Article 59 of the 1996 Order provides that the definition of “wages”, in relation to a worker, means:

"... any sums payable to the worker in connection with his employment including - (a) any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise...",

subject to certain statutory exceptions.

Other relevant and applicable law will be referred to further below.

The Submissions of the Respective Representatives

The following cases were cited in argument:-

Sindicato de Medicos de Asistencia Publica (SIMAP) – v – Constelleria De Sandidad Y Consumo De La Generalidad Valenciana [2000] IRLR 845

Landeshauptstadt Keil –v- Jaeger [2003] IRLR 804

Gallagher & others –v- Alpha Catering Services Limited [2005] IRLR 102

MacCartney –v- Oversley House Management [2006] IRLR 514

Corps of Commissionaires Management Limited –v- Hughes [2009] IRLR 122

Hughes –v- Jones (t/a Graylyns Residential Home) UKEAT/T/0159/08MAA, 3 October 2008

Christopher Heath & Nigel Brown –v- Bedford Hospital NHS Trust, ET Case No. 1200712/00 & 1200713/00, 5 February 2007

Norman Ekin –v- United Hospitals Health & Social Services Trust, NIIT Case No. 3254/01

McAndrew –v- South Warwickshire NHS Primary Healthcare Trust [ET Case No. 1300022/2004, 2 July 2004]

Samuel Blakley –v- South Eastern Health and Social Care Trust, NIIT Case No. 918/08, 6 January 2009

HM Revenue Commissioners –v- Ainsworth [2005] ICR 1149 CA

Roberts –v- North Wales Police [ET Case No. 2900159/04]

Submissions on behalf of the claimant

8. Mr Grainger, for the claimant, has made both oral and written submissions. Mr Grainger’s submissions refer to the facts of the matter which, as mentioned, are largely not in contention. Mr Grainger also alludes to a number of case law authorities some of which shall be referred to further by the Tribunal below. In essence, Mr Grainger has submitted to the Tribunal that the claimant’s “rest breaks” were not genuine breaks. The claimant was interrupted during some of her breaks. Furthermore, the claimant was always at risk of interruption during her breaks. These submissions place some emphasis upon the case of Gallagher & others –v- Alpha Catering Services Limited [2005] IRLR 102. This is an English Court of Appeal case which provides some guidance on what constitutes a rest break in the context of meeting the statutory requirements of WTR. Mr Grainger submits that in Gallagher the employer presented argument based upon what might be referred to as the “continuity of service” (special case) exemption. This is found at Regulation 21(c) of WTR. In that case the employer argued, in the alternative, that the uninterrupted “downtime” of not less than 20 minutes counted as rest breaks. The Court of Appeal in Gallagher held that the essence of a rest break is that the worker knows at the start of any break that all of the break from work is time available to the worker to do as he or she pleases. A period of downtime cannot retrospectively become a rest break. Mr Grainger submits that, like Gallagher, the claimant did not know at the start of her break whether or not she would be interrupted. The respondent’s evidence had effectively conceded that point, contends Mr Grainger. Counsel has further submitted that a similar situation is to be found in the case of MacCartney –v- Oversley House Management [2006] IRLR 514, this being an English Employment Appeal Tribunal case. The Employment Appeal Tribunal, in MacCartney, following certain principles earlier established by the European Court of Justice (in the cases to which the Tribunal shall refer further below), concluded that the whole period during which Mrs MacCartney was “on call” amounted to working time, provided that she, as a worker, was required to remain at or a very short distance from her home (her home on the facts was located within her place of work). If she did so, she thus remained subject to the restrictions of and under the obligations to her employer. Therefore, it was the claimant’s case that the claimant was effectively “on call” throughout the entirety of her rest breaks as the risk of interruption was a significant one; in practice, the claimant was routinely interrupted. The claimant was entitled to take her rest breaks without interruption or the risk of interruption.

9. Mr Grainger has argued that the respondent was not entitled to avail of the exemption contained in Regulation 21 (c) of WTR for the reason that the essence of Regulation 21(c) suggests that it is the worker’s activities, not the work carried out by the employer, that must involve the need for continuity. This had been confirmed by the Court of Appeal in the Gallagher case. As Regulation 21(c) of WTR focussed directly on the worker’s activities, not the employer’s business, notwithstanding the pressure on the employer to provide continuity of service, there was no reason why any worker’s working time could not be organised in such a way that workers could have rest breaks. The claimant did not accept that her activities involved the need for continuity of service. Mr Grainger, further, has submitted that the facts of this case are on all fours both with MacCartney and also with a matter recently determined by an Industrial Tribunal in Northern Ireland. That is the case of Samuel Blakley –v- South Eastern Health and Social Care Trust, NIIT Case No. 918/08, 6 January 2009 (to which the Tribunal shall make further reference). Mr Grainger, in addition to the foregoing, made further submissions in respect of compensatory rest and the issue of unauthorised deductions, contending that the failure to pay the claimant for these rest breaks, or to permit the claimant to take paid time off, constituted an unauthorised deduction from wages in contravention of under Article 45 of the 1996 Order.

Submissions on behalf of the respondent

10. Replying to Mr Grainger’s submissions on behalf of the respondent, Mr Hamill has submitted that the claimant had failed to quantify interrupted or missed breaks. There was no evidence in respect of this produced at the grievance appeal hearing nor was any such recorded in the time owing book. Regulation 21(c) of WTR provides a statutory exemption which echoes the provisions of the Working Time Directive. The Tribunal ought to note, so Mr Hamill contends, that it is the role of the worker as a health service professional to provide for continuity of service, not the hospital. The Tribunal must apply a common sense interpretation of the wording of the legislation, its intent, and have regard to the role of nursing professionals in an acute hospital ward. The wording of the respondent’s policy that was contained in paragraph 27.15 of Agenda for Change was, it must be noted, similar to the wording of Regulation 21(c) of WTR. There was clear evidence placed before the Tribunal of the claimant’s own duties and professional responsibilities; and the unchallenged adherence to paragraph 27.15 of Agenda for Change and the wording of Regulation 21(c) of WTR by all nursing Unions without protest to date; and a widespread and consistent use of the time owing book to record time owing on account of a number of matters, including wholly or partially missed work breaks; and finally, the unquestioned acceptance by nursing staff that patient safety took priority over the taking of a work break. The conditions of service in Agenda for Change clearly required that proper provision be made to allow for compensatory breaks to be taken. The time owing book system satisfied that requirement. The claimant had accepted that every minute she had claimed under this time owing book system had been afforded and compensated to her. She had therefore been allowed to take an equivalent period of compensatory rest in every instance.

11. The Tribunal should be careful, Mr Hamill submitted, to distinguish the so called ”doctors on call” cases and the position of the claimant. These cases referred to are the European Court of Justice Cases of Sindicato de Medicos de Asistencia Publica (SIMAP) – v – Constelleria De Sandidad Y Consumo De La Generalidad Valenciana [2000] IRLR 845 and Landeshauptstadt Keil –v- Jaeger [2003] IRLR 804. (These are referred to hereafter as the “SIMAP” and the “Jaeger” cases). In these “doctors on call” cases, the facts concerned the issue of doctors on call located at (or away from) medical facilities. The European Court of Justice determined, in the SIMAP and the Jaeger cases, that the decisive factor in considering whether the time spent on call by doctors in a hospital was working time (or was not) was whether the doctor was required to be present at the place determined by the employer (the medical facility or hospital) and to be available to the employer in order to provide services immediately, in case of need. Mr Hamill argued that the material facts of these cases must be distinguished from the facts of the claimant’s case. The claimant was on a paid working shift with specified “rest breaks”; that was quite distinguishable from being “on call”. The break period could not be artificially extracted from the entire shift period and treated other than what it was. It was a WTR break period. If the break period was curtailed, or if it could not be taken, then a compensatory rest period was clearly provided for by means of the use of the time owing book system. There was no statutory or other duty placed upon the employer to do more than had been done in this instance, it was submitted.

12. Mr Hamill submitted that, whilst the respondent did accept that there was a risk of interruption of work breaks, it was clearly impossible to remove any such risk and indeed there was no statutory duty to do so. By providing an area for rest away from the work station, where any break could be taken, the employer’s duty was discharged. Whether the area was noisy or silent was of no relevance. To constitute working time, as opposed to a rest break, the employee must be working and at his employer’s disposal and carrying out his activities or duties. Clearly, if the claimant had an uninterrupted break in the rest room or elsewhere other than the Recovery Ward (which was her work station) she could not be said to be working. In similar fashion, whether she was interrupted once a month or once a night was irrelevant. Either she claimed time lost (by means of the time owing book system) or she did not. That was up to her. Even with an interruption rate of 50% (which the respondent indeed did not accept was the case) the statutory minimum of 20 minutes rest break specified under the provisions of WTR was being fulfilled by the respondent, at the very minimum, on almost every working night. If the claimant chose not to fill in the time owing book that was a matter for her and that was her own personal responsibility.

13. Mr Hamill, further, submitted that in regard to the claim for unlawful deduction of wages, the Tribunal had to have regard to the claimant’s contractual terms and the provisions of WTR. In any event, the claimant could not bring an unlawful deductions claim in this case on account of MacCartney in that regard. Mr Hamill also referred to the case of Revenue Commissioner –v- Ainsworth [2005] ICR 1149 CA and Corps of Commissions –v- Hughes EAT 0196/08 and made further submissions in respect of the European Case Law and the “on call” cases and particularly referred to the case of Gallagher. In Gallagher the point was that the workers did not know until afterwards whether or not they were getting rest breaks. In the case of the claimant she clearly did know in advance that she was to have a rest break. If it was interrupted she could use the time owing book system. There was no retrospection about the matter and that distinguished the facts of the claimant’s case from Gallagher. MacCartney was also to be distinguished for the reason that the WTR Regulation 21(c) argument was not advanced in MacCartney and that case was not determined in the light of that Regulation. The case cited by Mr Grainger, Blakely, was to be factually distinguished from the instant case. None of these arguments had been advanced and dealt with by the Northern Ireland Tribunal in the case of Blakely,

The Tribunal’s Determination of the Issues

14. The Tribunal has given consideration to the submissions of the respective representatives and considered the cases cited as authorities in the matter. One of the core issues in the case is the issue of WTR and the concept of a worker being “on call”. The Tribunal has had the benefit of the reasoning underlying the decisions of the European Court of Justice in these “on call” cases concerning health service professionals in the cases of SIMAP and Jaeger. The Tribunal bears in mind that WTR Regulation 2(1) defines working time (in exactly the same manner as this is defined in the Working Time Directive) as being:-

“(a) any period during which [the worker] is working, at his employer’s disposal and carrying out his activity or duties,

(b) any period during which he is receiving relevant training, and

(c) any additional period which is to be treated as working time for the purposes of these Regulations under a relevant agreement.”

It must be noted that all three components of WTR Regulation 2(1) (a) above must be satisfied in order for the period to constitute working time – (i) working, (ii) at his employer’s disposal and (iii) carrying out his activity or duties. Rest breaks are periods within the period of working time during which the worker is freed from the obligations of work; rest periods are simply periods free from working obligations between successive periods of working time. Thus a worker is to be deemed either engaged in working time or not so; there is no intermediate status. The SIMAP and Jaeger cases have examined the situations where a worker might be liable to be called out and must therefore be contactable and this is contrasted with a situation where the worker is required to be physically present and on call at the employer’s work place. Therefore in the SIMAP case the doctors were required to be physically present at the medical facility whilst on call but did not actually perform any medical duties in between each call out. The doctors were free to engage in whatever activities they wished, whilst remaining on the premises. The European Court of Justice held that under these circumstances all three elements mentioned above were present. Therefore, if the doctors were required to be at the medical facility the third element above [“(iii) carrying out his activity or duties “] was deemed satisfied and all time spent at the medical facility was to be regarded as working time. In the Jaeger case the European Court of Justice examined the provision of rooms with beds and facilities to sleep to doctors on hospital premises and, once again, the requirement to be at the medical facility was the determinative factor in deciding whether all time spent in this way was working time. In summary, under these conditions, an employee available at a place so determined by the employer for work cannot be regarded as being at rest during periods of his or her on call duty when he or she is not actually carrying out any professional activity.

15. The Tribunal also examined the facts of a number of United Kingdom case law authorities cited in argument in order to ascertain what principles might be established and derived from these cases. In the case of Gallagher, mentioned above, the Court of Appeal in England examined the situation of airline catering workers and the application of Regulation 21(c) of WTR. That provides that the right under Regulation 12 of WTR to a rest break of at least 20 minutes in each six hour period of working time does not apply “where the worker’s activities involve the need for continuity of service or production”. The Court of Appeal held that the “activities” referred to in Regulation 21(c) as involving the need for continuity of service or production are those of the worker, not those of the employer. The Court of Appeal held that it had not been explained in that case why working time could not have been so organised as to permit the workers to take valid rest breaks within each six hour period of working time. In accordance with the case of Gallagher, this Tribunal is required to focus on the activities of the worker, not those of the employer, in examining Regulation 21(c) of WTR. In the case of MacCartney, mentioned above, Mrs MacCartney was provided with accommodation at her work place. She was required to be on site to answer calls throughout a period of 24 hours, but otherwise she could sleep during the night or engage in recreational activities in her home. The EAT held that she was “working” for the whole of the 24 hours for the purposes of WTR. The EAT further noted that in Mrs MacCartney’s case (see paragraph 48 of the judgement) “…. the likelihood of her being telephoned and called out was very substantially less than …a doctor …at rest in a hospital. But (unless the likelihood is so insignificant as to be trifling) we do not think the extent to which the worker is likely to be called out (which may fluctuate from time to time) can be decisive of the question whether he or she is working.” Workers who are on call at a place where they are required to be and to remain by their employers may be said to be “working” even though they are sleeping or resting. This was similar to the conclusion in the case of Hughes v Jones (t/a Graylyns Residential Home) UKEAT/T/0159/08MAA, 3 October 2008, another EAT case.

16. In the English Employment Tribunal case of McAndrew v South Warwickshire NHS Primary Healthcare Trust [ET Case No. 1300022/2004, 2 July 2004], Mr McAndrew was a registered mental health nurse working on night shift. It was accepted on the facts of that matter that qualified nurses on duty could not leave the medical facility and had to be available to deal with emergencies and to give advice to other staff as necessary. The evidence in that case was of breaks being taken under the constant concern that these might be interrupted by a patient requiring help. Indeed, that appears to have been of such a concern that some nursing staff did not take their breaks in a dedicated room available for that purpose, but rather at their night stations where they felt more comfortable in case they would be required. In that case, the Tribunal concluded that a rest break spent in an unoccupied side ward or away from the work station complied with the regulations. However, the Tribunal in that case also noted that rest breaks and working time are not mutually exclusive in the way that rest periods and working time are. The Tribunal concluded that Mr McAndrew’s position during rest breaks was, in all significant respects, the same as that of the doctor in the Jaeger case. The rest break was thus deemed to be working time; Mr McAndrew was effectively “on call” during that period.

17. The case of Samuel Blakley v South Eastern Health and Social Care Trust, NIIT Case No. 918/08, 6 January 2009 a Northern Ireland Industrial Tribunal case, was mentioned in submissions. In that case the Tribunal determined that an ad hoc arrangement for compensatory rest applied by the respondent did not constitute adequate compensatory rest within the meaning of Regulation 24 of WTR. The time spent “on call” by Mr Blakley did constitute “working time” within the meaning of Regulation 2 of WTR and thus the claimant was entitled to be paid for all his time on call. A finding of unlawful deduction from wages was made by the Tribunal in that case. The facts of Blakley are that the claimant was one of a number of estates officers employed by the respondent. He was expected to take part in an out of hours “on call” service. However, Mr Blakley was not required to be on the respondents’ premises during his on call periods. However, the Blakley case is only of limited relevance on that point alone. It is not in dispute that one of the central issues in the instant case centres around whether or not the time period during which the claimant was taking her rest breaks could be properly deemed “on call” time and this time was without question time spent on the hospital premises. Thus issues emerging in a number of cases cited in submissions pertaining to the status of a worker at home or elsewhere and not on the employer’s premises are of no material bearing for the purposes of this case.

18. The Tribunal examined the principles or themes emerging from all of the cases cited in argument and endeavoured to apply these principles to the facts of the claimant’s situation. There is clear and largely uncontroverted evidence that there was a material risk of interruption of the claimant’s rest breaks. The precise degree of that risk was however somewhat in contention. However, it cannot be described as being a low degree of risk nor can it be fairly stated that the risk was in any manner negligible. That much has been indeed accepted expressly and without apparent difficulty on behalf of the respondent. Looking at the situation as it existed in reality, on the facts of the matter the Tribunal has considerable difficulty in distinguishing the situation that was encountered by the claimant as she took her rest breaks with the attendant risk of interruption, on the one hand, from the situation encountered by the doctors (as in SIMAP and Jaeger) being “on call”. The reality was that the claimant could not commence a rest break secure in the knowledge that there would be no interruption. She did not it seems ignore or disregard any interruptions (and there was no evidence that she was entitled to do so notwithstanding that she was on rest break). The claimant, as would be any health service professional, was bound by the code of professional conduct and ethics of her profession as well as by her contractual terms. That reality therefore dictated that the claimant as a health service professional participated in a working arrangement that rendered her readily available throughout rest breaks to deal with work-related matters, both great and small in terms of clinical significance.

19. In what way was the claimant’s situation similar to or distinguishable from the doctor who was required to be present on hospital premises and resting but “on call”? In SIMAP and Jaeger, the European Court of Justice determined that this doctors’ time “on call” constituted working time. For the respondent, Mr Hamill has submitted that the two situations are quite distinguishable for the reason that the doctor is contracted to be present and “on call” (that is to say not on rest break time) whereas the claimant was engaged in rest break time, albeit a break that could be interrupted, but with the facility afforded for compensatory rest in the event of any interruption. Considering these arguments, the Tribunal looks to the purpose and intent lying behind the Directive and WTR. This relates to the health and safety of workers. The consistent thread running through the cases is that workers must be afforded proper and valid rest breaks secure in the knowledge that these rest breaks can be taken as such. The Tribunal bears in mind the passage from Jaeger (at paragraph 69) that the purpose is, “…to enable [the worker] to relax and dispel the fatigue caused by the performance of …duties. “) Effectively, the reality is that the claimant was “on call” during these rest breaks in a manner that is very difficult to distinguish from the doctors in the cases of SIMAP and Jaeger (and indeed the residential care workers in the domestic cases cited). The claimant’s situation during these rest breaks was that in reality the three components that require to be satisfied in order for the period to constitute working time – (i) working, (ii) at … employer’s disposal and (iii) carrying out … activity or duties, were present in a manner no different to the doctors in SIMAP and Jaeger. If that assessment is correct, the claimant was engaged in working time when she was in effect “on call” during these rest breaks. The Tribunal believes that this view of things accords with and is consistent with the general approach adopted by both the European Court of Justice and by the domestic courts and tribunals.

20. In this case the claimant’s “work station” was the recovery ward. There is no doubt that she was permitted to take rest breaks away from her work station in the rest room and possibly two other locations but she was confined to the hospital premises on account of health and safety issues. As the Tribunal understands it these health and safety issues included not just the health and safety of the health care professionals but also of the patients in care. On an interesting point in that regard, the Tribunal notes that there was particular evidence that any high dependency patient in the Recovery Ward had to be attended to by two qualified members of nursing staff. The availability of the claimant to be effectively on call during her rest breaks appears to have assisted the respondent in ensuring compliance with its obligations in that regard, as the Tribunal understands it.

21. A significant feature in the case is of course the statutory exception provided for by WTR, Regulation 21 (c). Examining the import of that exception, there is no doubt that that regulation was intended to cater for a situation where there was a need for continuity of service in respect of the treatment or care provided by hospitals. The arguments concerning applicability to the claimant’s case are interesting and indeed not at all easy to resolve. In submissions on this, the Tribunal has been invited by Mr Grainger to consider the case of Gallagher (mentioned above) and to concentrate upon the clear direction given by the Court of Appeal to the effect that the activities under scrutiny in regard to continuity are the workers’ activities and not those of the employer; Mr Hamill has taken no issue with the Tribunal having that focus. Mr Grainger has invited the Tribunal to consider whether or not, as in Gallagher, there has been sufficient evidence put forward that the employer could not reasonably have made alternative arrangements with the provision of sufficient staff cover to ensure that rest breaks were indeed taken without interruption or without the risk of interruption. Mr Grainger’s argument runs, firstly, that there is no automatic engagement of Regulation 21(c) just because a healthcare professional works in a hospital environment and secondly, that the effect of WTR and the protection afforded might be avoided by the simple expedient of the employer not engaging enough staff; he has described that as “a charter for avoidance”.

22. Responding, Mr Hamill has placed considerable reliance upon Regulation 21(c), taken together with Regulation 24. He has submitted that the effect of the provision is clearly applicable to the claimant’s situation for the reason that the claimant, under her particular circumstances as a healthcare professional working in a hospital environment, was a worker engaged in activities that did involve the need for continuity of service relating to the reception, treatment or care provided by hospitals. The availability for use by nursing professionals of the time owing book arrangement was to provide not the type of ad hoc facility that had been subject to criticism by the Tribunal in the case of Blakley but rather a formal but nonetheless readily available arrangement whereby equivalent periods of compensatory rest might be afforded to health care professionals in situations where rest breaks could not be taken on account of medical emergencies or other such intrusive demands or requirements. Mr Hamill has invited the Tribunal to concentrate upon the reality of the situation; Regulation 21(c), taken together with Regulation 24 applied, it was impossible to render rest breaks entirely free of the risk of interruption, and these WTR provisions existed precisely for that reason - to afford compensatory rest where Regulation 21(c) provided the exception on account of the nature of the work activities.

23. In this case, the Tribunal has noted that there was little distinction between the worker’s activities and the employer’s activities, both necessitating the provision of care services in a hospital environment and the need to provide for continuity of service in relation to the treatment and care provided to patients. However, as was observed in Gallagher, certainly the exemption provided for by Regulation 21(c) of WTR was intended to be applicable to the activities of the worker. That much is not in contention. However, did the claimant in her particular situation fall within the exemption? According to WTR, if the provisions of Regulation 24 are met, and an equivalent period of compensatory rest is afforded, Regulation 12 of WTR is deemed complied with. Certainly, the facility existed, formally, to enable the claimant to take equivalent compensatory rest breaks if there was interruption of any rest break. There was nothing preventing the claimant from claiming compensatory rest. This has been commented upon by Mr Hamill in his submissions; if she chose not to do so, that was a matter for her. Looking at all of this, the respondent in the Tribunal’s determination had complied with WTR insofar as the respondent had put into place a compensatory rest system for those workers to whom the WTR Regulation 21(c) exemption applied.

24. In making the rather difficult determination as between Mr Grainger’s “charter for avoidance” argument and Mr Hamill’s exhortation that Regulation 21(c) was clearly applicable to the claimant’s situation, the Tribunal notes that there is regrettable and perhaps rather surprising dearth of direct guidance to be gleaned from the cases cited in argument, as many of the legal and factual scenarios depicted in the cases are rather different to the claimant’s case. In Gallagher, the Court of Appeal in England determined that Regulation 21(c) did not apply to aircraft loaders. In Corps of Commissionaires Management Limited –v- Hughes the EAT determined that Regulation 21(c) did not apply to security guards. In Heath & Brown –v- Bedford Hospital NHS Trust the English Employment Tribunal determined that Regulation 21(c) did apply to healthcare professionals. In McAndrew –v- South Warwickshire NHS Primary Healthcare Trust the Employment Tribunal (as far as it seems to be apparent from the decision) determined that Regulation 21(c) did apply to a registered mental health nurse. The distinctions as to the potential applicability of Regulation 21(c) appear to turn upon the particular facts of each case generally and specifically upon the nature of the post. Some occupations (for example security guards or aircraft loaders) have been seen by courts and tribunals as capable of being organised or arranged so as to provide for break cover, thereby rendering the (worker’s) “continuity of service” and thus the Regulation 21(c) exemption inapplicable. However, in respect of higher level professional status posts, such as healthcare professionals, it appears that the inapplicability of Regulation 21(c) seems increasingly difficult to argue. The Tribunal certainly, looking at the Regulation 21(c) exemption, cannot accept the proposition that it is always possible to make working arrangements that shall render that exemption a nullity in all cases, nor indeed that the exemption must apply only in the rarest of cases. At the other end of the spectrum, the Tribunal certainly cannot accept, as it were, a “blanket” job role applicability to all workers in a particular class or industry. Regrettably, the arguments in this regard are not fully developed in the cases cited. Examining the situation of the claimant and the evidence in respect of her work patterns and duties, the Tribunal determines that Regulation 21(c) does apply to the claimant’s situation. This is so for the reason that the claimant, under her particular circumstances as a healthcare professional working in a hospital environment, was a worker engaged in activities that did involve the need for continuity of service relating to the reception, treatment or care provided by hospitals and therefore does come within the ambit of the provision.

25. What then is the position of the claimant who was effectively “on call” and engaged in working time during her rest breaks? The conditions of service clearly provide for unpaid rest breaks. The terms state: “Working time will be calculated exclusive of meal breaks except where individuals are required to work during meals in which case such time should be counted as working time”. Notably, the conditions are silent upon the issue of work break interruptions. Mr Grainger has gone so far as to state that that omission is bizarre. The Tribunal notes a rather interesting English Employment Tribunal case, mentioned in arguments, which has some similarities to the instant case. The point was addressed by the English Employment Tribunal in the case of McAndrew v South Warwickshire NHS Primary Healthcare Trust where, at paragraph 9 of the Tribunal’s reasons, commenting upon a relevant contract term in that case which stated, “Working time will be calculated exclusive of breaks…” (which wording notably appears to be rather similar to the contractual terms in the instant case) the comment was made by the Employment Tribunal, “This provision was presumably inserted, pursuant to regulation 12 (2) as a term on which the rest break was granted. This raises the question of whether a collective agreement can disapply the definitions of working time set out in regulation 2 of the Regulations, and Article 2 of the Directive so that time which would otherwise fall within the definition is taken out of it. Nothing in the Regulations allows that to be done; such disapplication is not included in Regulation 23, and appears to be prohibited by Regulation 35 (1)(a).” In the McAndrew case the Tribunal concluded that the rest break taken under the particular circumstances was working time and, bearing in mind the basic agreement in any contract of employment that an employee should provide work or services in return for remuneration paid by the employer, the Tribunal in McAndrew required clear proof of agreement to the contrary - that the work break was to be unpaid. None such was forthcoming apparently in McAndrew.

26. In the instant case, the service conditions provided that work breaks (actually referred to as “meal breaks”) were to be generally unpaid, save in regard to what might be described as “working lunches”. What is this Tribunal to make of that? The difficulty for the Tribunal seems to be that the concept of “meal breaks”, as these are described, appears, upon the common sense understanding of the concept, to have envisaged an uninterrupted period of time whereby any health service employee could take a meal break away from the relevant work station and (this can be the only logical presumption) free from the material risk of routine interruption. Certainly, that appears to be quite a different scenario from the one routinely encountered by the claimant. The Tribunal has little doubt that any worker freely entering into a contract would certainly not very readily agree to an arrangement whereby that worker was to be tasked with the provision of working time that was to be unpaid, this to be distinguished from quite distinct unpaid meal break times where no work was to be performed and which would not ordinarily be classified, in common understanding, as working time. That latter might readily be agreed to be unpaid as a meal break, but not the former. That being the case, to the extent that any rest breaks might be deemed to be working time, any worker would seem to have an entitlement either to payment in respect of this working time or to equivalent time off in lieu thereof dependent upon specific contractual terms or arrangements.

27. In respect of the matter of whether or not (as WTR Regulation 21(c) does apply in the claimant's case) the claimant has received her entitlement to compensatory rest, the Tribunal notes the existence of the “ time owing” book system. As is noted above, there was a system instituted by the respondent's management to enable any interrupted breaks to be compensated for in the case of any health service professional by the claiming of an equivalent period of time through this system. This system was readily available to the claimant and was used both by her and by other workers. It has been observed by the respondent’s representative, Mr Hamill, that it was a matter for the claimant to claim for interrupted breaks and for time lost as a result of any interruptions. If the claimant did make such a claim, the system was available to afford her compensation by time off in lieu, in common with other staff members.

28. The Tribunal reminds itself, firstly, that the rest breaks are to be deemed working time for the reasons stated above; secondly, that the “time owing book” system appears to have been used not for recording the entirety of these rest breaks but merely for recording interruptions to breaks; thirdly, that the respondent’s management did not recognize that the entirety of the rest breaks could be properly deemed working time. Therefore the “time owing book” was not used for such a purpose of recording the entirety of the rest breaks as working time. The best analysis that the tribunal can make of this situation is that the claimant could have used the time owing book system to claim any time that she regarded as being working time in addition to the interrupted work breaks. In doing so, she would perhaps have been presenting a challenge to the respondent's management but the facility did exist for her to make such a challenge on a day to day basis prior to her actually raising the issue expressly and then bringing these proceedings. In not using the “time owing book” for this purpose, the claimant herself seems to have accepted that the time owing book was not appropriate for such a use.

29. The Tribunal heard argument upon the issue of alleged unlawful deductions in respect of any failure on the respondent’s part to afford either payment or equivalent time off in lieu for any working time deemed to be included in these “work breaks” where the claimant was properly to be regarded as being “on call”. Mr Hamill submitted that on account of the case of Revenue Commissioner –v- Ainsworth [2005] ICR 1149 CA the Tribunal was not entitled to deal with an unlawful deductions case brought as a WTR case. However, the Tribunal declines to make any determination regarding the issue of unlawful deductions for the reason that the hearing of the instant case and of the arguments presented preceded the Judgement of the House of Lords in the case of HM Revenue & Customs –v- Stringer and Others [2009] UKHL 31 (10 June 2009). Before making any determination in respect of the alleged unlawful deductions case, the Tribunal would require further arguments and submissions concerning the jurisdiction and the capacity of the Tribunal to deal with an unlawful deductions claim in the setting in which this case has been pursued.

30. The Tribunal’s determination of the listed issues is therefore as follows (declining to answer particular issues as appropriate):

(a) Had the claimant received her entitlement to a rest break under Regulation 12 of WTR?

See the answers to the questions below.

(b) Did the claimant’s breaks constitute working time under WTR? If so, was the claimant entitled to be paid for her breaks or was she entitled to paid time off in lieu for all her rest breaks?

(c) If so, did the respondent’s failure to pay the claimant for her rest breaks or the respondent's failure to permit the claimant to take paid time off in lieu for her rest breaks amount to an unauthorised deduction from wages?

The Tribunal declines to answer this question in the light of paragraph 29 above.

(d) Did Regulation 21 (c) (i) of WTR apply in the circumstances of the claimant’s case?

Yes.

(e) If Regulation 21(c) (i) did apply in the circumstances of the claimant’s case, had the claimant received her entitlement to compensatory rest under Regulation 24 of WTR?

No, to the extent that, as applicable, the claimant's work breaks are to be deemed working time and compensatory rest has only been afforded for interrupted work breaks.

Insofar as these breaks are to be deemed working time, the claimant would have been entitled to paid time off in lieu thereof.

(g) If so, did the respondent’s failure to permit the claimant to take paid time off in lieu as compensatory rest for all her rest breaks amount to an unauthorised deduction from wages?

The Tribunal declines to answer this question in the light of paragraph 29 above.

31. The hearing of the matter by the Tribunal will now be reconvened to address any issues not disposed of in this decision.

Chairman:

Date and place of hearing: 30 March 2009, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Martin v Southern Health & Social Care ... [2009] NIIT 1151_08IT (14 October 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1151_08IT.html Cite as: [2009] NIIT 1151_8IT, [2009] NIIT 1151_08IT

Industrial Tribunals Northern Ireland Decisions