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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> South Holland District Council v Stamp & Ors [2003] UKEAT 1097_02_0306 (3 June 2003) URL: http://www.bailii.org/uk/cases/UKEAT/2003/1097_02_0306.html Cite as: [2003] UKEAT 1097_02_0306, [2003] UKEAT 1097_2_306

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APPEARANCES

 

For the Appellant	MS C IVIMY (of Counsel) Instructed by: Messrs Browne Jacobson Solicitors 44 Castle Gate Nottingham NG1 7BJ
For the Respondents	MS OMAMBALA (of Counsel) Instructed by: Messrs Thompson Solicitors Price House 37 Stoney Street The Lace Market Nottingham NG1 1NF


 


HIS HONOUR JUDGE BIRTLES

(1) Introduction

1. This is an appeal from the decision of an Employment Tribunal sitting at Nottingham on 31 July 2002. The Employment Tribunal consisted of a Chairman (Mr J A Caborn) sitting alone. The reserved decision was sent to the parties and entered in the register on 3 September 2002.
2. The material facts as found by the Chairman in paragraph 6 of his decision were as follows:

6 (i) South Holland District Council is a local authority covering an area of approximately 500 square miles. The Respondent provides a sheltered housing service throughout the District to meet the needs of the elderly. It provides an environment which allows residents to live independently in homes which are suited to their needs and have the peace of mind that someone is always at hand if help is needed. Help is provided either through the Warden who lives on site or, at times when she is not on duty, through the emergency alarm system (see the Pamphlet). The Pamphlet further provides under "Wardens" that "The Sheltered Housing Service is staffed by 40 Wardens all of whom live at or close by to the site for which they are responsible. On larger sites two Wardens are employed. The role of the Warden is to act as a "good neighbour" to residents within the scheme to lend support to residents when needed and respond to emergencies which may arise. Each morning when on duty the Warden will call on residents to ensure they are safe and well and if necessary will contact relatives, doctors, etc., if required. In addition the Warden is available when on duty to respond to emergencies should a resident summon assistance through the emergency alarm system. When not on duty this service is provided through the central control at Lincoln who will summon either relatives or emergency services. On occasions the Warden will assist residents who require collection of prescriptions or pensions, however this is not specific duty undertaken for all residents and is dependent upon the Warden's other duties. The Wardens do not carry out any nursing duties, domestic cleaning or preparation of meals for residents. The Wardens are generally on duty from 8.00am Mondays through to 3.00pm Fridays and throughout that period are available to respond to emergencies. Outside these hours and during periods of holiday/illness cover is provided through the central control in Lincoln. The sites Lime Court, Spalding, Trinity Court, Crowland and Glen Haven, Pinchbeck provide full Warden cover 7 days a week." (See the Pamphlet).

(ii) The Applicants' contracts of employment inter alia provide "Your working week is one of 5 days providing 24 hour cover each day Monday to Friday. Overtime is payable outside of the normal working week." – See "Statement of Particulars – Wardens" (pages 38-42 of the bundle). Mrs Austin was not able to produce her contract of employment. Although she had not seen a copy of the specimen form of contract at pages 38-42 of the bundle and believed that hers was slightly different in that it did not refer to overtime she nevertheless confirmed that she understood she was required to be on duty from 8.00am on a Monday morning until 3.00pm on a Friday afternoon (originally 5.00pm)

(iii) "Wardens' Duties" are as set out in the document at page 58 of the bundle. Mrs Austin acknowledged that the "Basic" and "Full" duties referred to in the document summarise the duties she is required to carry out although she did not regard her duties as being those of a "good neighbour." Mrs Austin and Mrs Temple carry out their duties with commitment and responsibility.

(iv) The Wardens lived on site occupying accommodation provided by the Respondent pursuant to a "tenancy agreement" a specimen form of which is at pages 43-48 of the bundle.

(v) The Wardens are required to be on site from 8.00am Monday morning until 3.00pm on a Friday afternoon and may only leave site at any time during this period with prior knowledge and consent of the Respondent. If a Warden wishes to leave site during the period 8.00am Monday to 3.00pm Friday they must first obtain permission of the Respondent. If a Warden leaves site without the prior consent and permission of the Respondent the Warden is liable to disciplinary action.

(vi) Wardens can be required to attend to their duties at any time during the period 8.00am Monday to 3.00pm Friday and which includes attending to and dealing with any emergency situation as and when it arises and at whatever time of day and/or night. Whether or not a Warden is called upon to attend an emergency at whatever time of day and/or night and however long a Warden may be engaged in carrying out Wardens' duties during the period 8.00am Monday to 3.00pm Friday it makes no difference to a Warden's pay.

(vii) There is no agreement in writing between the Applicants and the Respondent for the purpose "of determining the average daily number of hours the worker is likely to spend in carrying out the duties required…under (her) contract" pursuant to Regulation 28 of the National Minimum Wage Regulations 1999.

(viii) There is no evidence before the Tribunal that Wardens are provided with a period of compensatory rest as contemplated by Regulation 24 of the Working Time Regulations 1998 in the event of a Warden not having a daily rest period of eleven hours (Regulation 10 of the Working Time Regulations 1998) and/or assuming the provisions of Regulation 21 of the Working Time Regulations 1998 apply.

(ix) In June 2001 the Applicants, via their Union UNISON, raised with the Respondent the matter of their working hours and pay. Notes of a meeting held on 15 June 2001 are at pages 64-65 (UNISON notes) and 66-68 (Respondent's notes) of the bundle. After the meeting the Respondent wrote to the Wardens on 21 June 2001 inter alia clarifying "Calculation of Weekly Pay," "Actual Working Hours" and "National Minimum Wage" – see pages 70 and 71 of the bundle.

(x) By letter dated 23 August 2001 the Respondent wrote to the Applicants regarding their actual working hours pointing out that "the actual working time for each Warden varies according to the number of units supervised and the level of duties carried out. Additionally the very nature of the role of Warden means that these hours need to be flexible to accommodate the varying needs of tenants." It was further said that "…if you continually (are) unable to stay within this number (the average hours per week) of hours you should contact (the) Housing Officer" – see page 72 of the bundle. The Applicant did not contact the Housing Officer nor is there any evidence before the Tribunal that any other Warden did so.

(xi) In August 2001 the Respondent introduced Warden Activity Sheets and which Wardens are required to complete by reference to the number of hours they are engaged in a range of duties. When the Warden Activity Sheet was introduced the Respondent did not provide guidance as to how they were to be completed. Mrs Austin considers the Activity Sheet to be inadequate, it being necessary to add additional "duties" as necessary (see for example page 98). (Sample Activity Sheets are at pages 87-317 of the bundle).

(xii) The Applicants are paid by reference to a 37-hour week and paragraphs 11-15 of the statement of agreed facts deals with the Calculation of Wardens Pay. A Schedule of Wardens Rates of Pay, and Hours of Work is at page 49 of the bundle with the Wardens' "pay scales" being at page 52 of the bundle. At paragraph 15 of the Statement of Agreed Facts it is said "The maximum estimated working time of any Warden is 37 hours per week." The Statement of Particulars under "Hours of Work" refers to "Overtime is payable outside of the normal working week." (See paragraph 40 of the bundle). Mrs Austin has no recollection of the statement of terms of employment issued to her including the reference to overtime.

(xiii) The Applicants are required to be on site from 8.00am on a Monday morning until 3.00pm on a Friday afternoon. The Wardens require the Respondent's permission to leave the site. In the course of their duties, however, Wardens do leave site to collect prescriptions etc for residents, although in the light of the evidence of Mrs Austin and Mrs Temple it is apparent that different procedures apply at different sites. When a Warden leaves site in these circumstances it is with the knowledge and approval of the Respondent and subject to an arrangement that ensures the site is covered. Further, Wardens will visit residents and be present when, for example, residents are visited by outside work persons. Whilst the Wardens are primarily involved in carrying out their duties during daytime hours they are available to respond to calls from residents at any time during the period 8.00am Monday morning to 3.00pm Friday afternoon. Wardens may only leave site with the prior consent of the Respondent in consequence of which it is not permissible for them to go shopping or involve themselves in family activities off site without first obtaining permission or alternatively taking holiday. Whilst on site Wardens are free to involve themselves in personal activities about their homes, including, for example, preparing and cooking meals, entertaining guests and sleeping.

(xiv) The Respondent does not dispute that Wardens require permission to go off site. Mrs Temple referred to the Respondent being prepared to "bend the rules" on occasions to allow Wardens to go off site during the period 8.00am Monday to 3.00pm Friday.

(xv) Relatives of residents do contact Wardens for information and contact can be made at any time between 8.00am Monday to 3.00pm Friday and also including between the hours of 3.00pm Friday afternoon and 8.00am Monday morning.

(xvi) In September 2001 the Applicants notified a grievance. UNISON wrote to the Respondent on 4 September 2001 registering a grievance "…against the current out of hours working practices with the Warden Aided Service" – see page 75 of the bundle. The Respondent wrote to UNISON on 6 November 2001 confirming "that they were legally bound to consult tenants prior to any change in the level of service being made…" See page 77 of the bundle."

(xvii) The Respondent produced a "Summary of Wardens Daily Activity Sheets" which is at page 85 of the bundle. It is understood the statistical information is based on the Activity Work Sheets included in the bundle at page 87-279. The Tribunal notes, however, the evidence of Mrs Austin and which is accepted, that the Wardens were given no instruction on the completion of the Activity Work Sheets and that Activity Work Sheets do not necessarily include all the activities that a Warden may carry out, in consequence of which, the Tribunal concludes that the statistical information must be viewed with caution and not construed as conclusive fact."

(2) The Employment Tribunal Decision

3. We had some confusion in deciding what questions the Chairman was asked to decide and whether they were indeed properly formulated to resolve this dispute. As far as the Chairman is concerned, he sets out the questions at paragraph 3 of his decision in the following way:

3 "At a Directions Hearing held by telephone conference call on Wednesday 9 January 2002 it was Directed (inter alia) that:

"1 The narrow question which the hearing will have to decide is whether or not Wardens 'standby' hours constitute working time for the purpose of the National Minimum Wage Regulations and the Working Time Regulations.

(It is noted that by reference to the "Statement of Agreed Facts" at point 10 it is said "The dispute in this case is whether all hours when a Warden is on duty count as "working time" for the purposes of the National Minimum Wage legislation and for the purposes of the Working Time Regulations or whether "working time" is only the hours when the Wardens are actually engaged in activities for the residents such as the daily visits and attending call outs (see under Wardens' duties/activities below). Accordingly it is noted that the issue is to be determined is wider than anticipated at the time of the Directions Hearing)."

4. That same conference call confirmed that the hearing would be taken by a Chairman sitting alone. Given the extensive fact-finding that it was necessary for the Chairman to make, we think that it was a mistake for him to agree to conduct this hearing alone. The fact-finding should have been carried out by a full Employment Tribunal.
5. It is quite clear to us that the question to be decided by the Chairman, as formulated both at the Directions Hearing held by telephone conference call on Wednesday 9 January 2002 and in point 10 of the Statement of Agreed Facts, is both wrong and misleading. The phrase "working time" only appears in the Working Time Regulations 1998; it does not appear at all in the National Minimum Wage Act 1998 or the National Minimum Wage Regulations 1999. It appears to us that there was a failure by the legal advisers for both sides to assist the Chairman in formulating the issues he had to decide and to some extent this may account for the errors of law which we find in the decision.
6. The failure to properly formulate the issues to be decided at the beginning of the hearing follow through into the written decision. The decision itself is set out at the beginning of the written decision (page 2 of the bundle) in the following way:

"The decision of the Employment Tribunal is that: -

(a) the Applicants are engaged in "unmeasured work."

(b) the "Working Time" comprises all the hours the Applicants are required to be at work throughout the period 8.00am Monday to 3.00pm Friday and is not restricted to the hours which the Applicants are actually engaged in activities for the residents such as the daily visits and attending call outs.

(c) the hearing will be restored on a date to be notified to deal with the matter of minimum wage and remedy."

7. That is the formal decision of the Tribunal in this case and flows directly from paragraphs 70 and 71 of the reserved decision which repeats the decision verbatim, save that paragraph 70 (b) specifically refers to the Working Time Regulations 1998. Nowhere in the narrow decision set out above does the Chairman refer to his decision that the pay reference period for unmeasured work for the purposes of Regulation 27 of the National Minimum Wage Regulations 1999 is 103 hours. There is reference to it in the text of the reserved decision (see paragraphs 64-65) but there is simply a conclusion and no reasoning as to how the Chairman arrives at that conclusion.

(3) The Notice of Appeal

8. Although there was considerable argument before the Employment Tribunal about whether the Applicants were engaged in "unmeasured work" within the meaning of Regulation 6 of the National Minimum Wage Regulations 1999 (see decision paragraphs 50-63) that is not an issue which we have to decide because there is no appeal against it. For the purposes of the appeal before us both parties accepted that the Applicants were engaged in "unmeasured work" as defined by Regulation 6 of the 1999 Regulations.
9. The appeal is against:

(a) the decision of the Employment Tribunal that the 103 hours per week which the Applicants were required to be on site and on "standby" constituted "working time", as defined by Regulation 2 (1) of the Working Time Regulations 1998 and therefore they were entitled to be paid the national minimum wage as well as being entitled to the rights available under the Act and Regulations;

(b) the decision of the Employment Tribunal that being engaged in unmeasured work under Regulation 6 of the National Minimum Wage Regulations 1999 their unmeasured work in a pay reference period was 103 hours which was the time spent in carrying out their contractual duties, as defined by Regulation 27 of the National Minimum Wage Regulations 1999.

(4) The Law

10. Section 1 of the National Minimum Wage Act 1998 provides as follows:

1 "Workers to be paid at least the minimum wage

(1) A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.

(2) A person qualifies for the national minimum wage if he is an individual who-

(a) is a worker;

(b) is working, or ordinarily works, in the United Kingdom under his contract; and

(c) has ceased to be of compulsory school age.

…

2 Determination of hourly rate of remuneration

(1) The Secretary of State may by regulations make provision for determining what is the hourly rate at which a person is to be regarded for the purposes of this Act as remunerated by his employer in respect of his work in any pay reference period."

11. The relevant parts of the National Minimum Wage Regulations 1999 (SI 1999/584) are contained in the following provisions. Regulation 6 defines "unmeasured work" as follows:

"6 The meaning of unmeasured work

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

12. We have earlier indicated that there was no appeal against the finding of the Employment Tribunal that all of the Applicants in this case were engaged in unmeasured work. Regulation 27 says this:

"27 Unmeasured work

Unless the condition in regulation 28 (1) is satisfied, the unmeasured work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period in carrying out the contractual duties required of him under his contract to do such work."

13. Regulation 28 provides as follows:

"28 "Daily Average" agreements for unmeasured work

(1) The condition referred to in Regulation 27 is that there is an agreement in writing between the worker and his employer, made at any time before the beginning of the pay reference period, determining the average daily number of hours the worker is likely to spend in carrying out the duties required of him under his contract to do unmeasured work on days when he is available to carry out his duties for the full amount of time contemplated by the contract.

(2) The condition in paragraph (1) is not satisfied if the employer cannot show that the average daily number of hours determined is a realistic average.

(3) Unless otherwise agreed the agreement referred to in paragraph (1) has effect solely for the purpose of determining the amount of unmeasured work the worker is to be treated as having worked for the purposes of these Regulations and does not vary the worker's contract."

14. It is not necessary to set out Regulation 29 which deals with "Determining the hours of unmeasured work where there is a "daily average" agreement." There was no daily average agreement in this case. The only other material provision is the definition of "pay reference period" by Regulation 2 (1) that phrase has the meaning assigned to it by Regulation 10, which says this:

"10 The pay reference period

(1) The pay reference period is a month or, in the case of a worker who is paid wages by reference to a period shorter than a month, that period.

(2) When a worker's contract terminates regulations 14 and 30 to 37 shall be applied in relation to payments made in the period of a month beginning with the day immediately following the last day on which the worker worked under the contract as if such payments had been made in the worker's final pay reference period."

15. The Working Time Regulations 1998 (SI 1998/1833). Regulation 2 (1) defines "worker" as meaning:

"an individual who has entered into or works under (or, whether the employment has ceased, worked under) –

(a) a contract of employment; or

(b) [not relevant]"

16. There is no dispute in this case that all the Applicants were employed by the South Holland District Council under individual contracts of employment and therefore fell within the definition of "worker" in Regulation 2 (1).
17. The phrase "working time" is defined in Regulation 2 (1) in the following way:

"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) [not relevant]

(c) [not relevant]"

18. The remainder of the Regulations deal with a number of the rights which come from the Working Time Regulations.

(5) The Submissions

(5.1) The National Minimum Wage Regulations

19. As we have indicated, there is no appeal against the Employment Tribunal's decision that the Applicants were engaged in "unmeasured work", as defined by Regulation 6 of the National Minimum Wage Regulations 1999. Ms Ivimy for the Appellant made the following submissions. She argued that the Employment Tribunal erred in law in holding that the total number of 103 hours per week, i.e. 8.00am Monday through to 3.00pm on Friday, all constituted unmeasured work. She said that on the facts as found by the Employment Tribunal, the time actually spent attending residents, i.e. approximately 19-37 hours per week (depending on the particular site was the actual unmeasured work). Second, she argued that the Tribunal erred in law in not applying Walton v The Independent Living Organisation [2003] EWCA Civ 199. The judgment is dated 26 February 2003.
20. The Employment Tribunal had in front of it the decision of the Employment Appeal Tribunal in Walton which was delivered on 25 April 2002 and which was affirmed by the Court of Appeal. Ms Ivimy argues that the Employment Tribunal was wrong to refer to the decision in Scottbridge Construction Ltd v Wright [2003] IRLR 21 because that case was concerned with "time work" defined by Regulations 3 and 15 of the 1998 Regulations.
21. She also argued that the Employment Tribunal was wrong to rely on the decision of the European Court of Justice in Sindicato de Medicos de Asistencia Publica (SIMAP) v Conselleria de Sandidad y Consumo de la Generalidad Valenciana hereinafter (SIMAP) [2000] IRLR 845, because that was a case which involved the Working Time Regulations, not the National Minimum Wage Regulations.
22. On that basis Ms Ivimy invited us to say that the Employment Tribunal was wrong and we could decide the case on the facts as found by the Chairman set out above. In the alternative she argued that there was no proper fact-finding by the Employment Tribunal in this case as to the actual number of hours worked and we should therefore remit the case to a different full Employment Tribunal to find the necessary facts.
23. Ms Omambala urged us to take a purposive construction of the 1999 Regulations and construe the actual words, given that words such as "attendance time", "non-attendance" or "standby time" were not used in the National Minimum Wage Regulations 1999. There was a complete definition of unmeasured time in Regulation 6 and she referred us to the fact that that was discussed by the Employment Tribunal at paragraph 63 of its decision. There was no appeal against the finding that the Respondents were engaged in unmeasured work.
24. She argued that in considering Regulation 27 the Employment Tribunal could look at Scottbridge and British Nursing Association v Inland Revenue [2002] IRLR 480. She further argued that the decision in Walton was not relevant. If necessary she also relied upon the judgment of Arden LJ at paragraphs 38-42. Alternatively she submitted that if we found that on the evidence the Chairman was in error in finding that the Respondents were working for 103 hours then we should remit the case to a fresh Tribunal for it to quantify the number of hours actually worked by the Respondents because we were not able to make that decision ourselves on the evidence before us.

(5.1) Working Time Regulations

25. Ms Ivimy submitted that the Employment Tribunal had conflated its finding that the Respondents were engaged in unmeasured work and also engaged in "working time" for 103 hours a week. This was a freestanding error of law that would justify a remission to the Employment Tribunal.
26. She submitted that the issues to be decided under the two sets of Regulations were different. In support of this submission she relied on the Preamble to the Directive and the decision of Buxton LJ in British Nursing Association v Inland Revenue [2002] IRLR 480 at paragraph 20. She also relied upon the SIMAP case [2000] IRLR 845.
27. On the issue of construction she argued that the definition of "working time" in Regulation 2 (1) must be conjunctive. In other words to bring themselves within the definition in paragraph (a) the Respondents must satisfy all three parts of paragraph (a).
28. Looked at in this way the definition:

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

can only apply to the actual number of hours worked and not to the 103 hours for which the Wardens are required to be on site and on call.

29. Ms Omambala argued that that definition was disjunctive and not conjunctive. Therefore, if the Respondents could bring themselves within one of the three limbs of paragraph (a) of the definition in Regulation 2 (1) then they succeeded in proving that they were entitled to claim the whole 103 hours, i.e. the time spent on site. She argued that the second limb "at his employer's disposal" was therefore sufficient. Alternatively she argued that the SIMAP case did not support either a conjunctive or a disjunctive interpretation of the definition of "working time" in Regulation 2 (1). She sought to distinguish that case on its facts from the present case. She further argued that there was no conflation by the Employment Tribunal of the test of "unmeasured time" and "working time" in the two sets of Regulations.

(6) Decision

30. We are unanimous in deciding that the Chairman erred in law in this case for the following reasons.

(6.1) National Minimum Wage Regulations 1999

31. On the facts as found by the Chairman we have no doubt at all that the Employment Tribunal was correct in deciding that the Respondents were engaged in unmeasured work as defined by Regulation 6 of the 1999 Regulations. In any event, there is no appeal against that decision and even if we thought it wrong we are not in a position to take a different view.
32. However, that is only one part of the equation. Regulation 27 provides as follows:

27 "Unless the condition in regulation 28(1) is satisfied, the unmeasured work worked by a worker in a pay reference period shall be the total of the number of hours spent by him during the pay reference period in carrying out the contractual duties required of him under his contract to do such work."

33. In our view, the Employment Tribunal failed to properly consider this question, or, in the alternative, did not provide any reasoning for concluding that the total number of hours spent "during the pay reference period in carrying out the contractual duties required of him under his contract of employment to do such work" was 103 hours.
34. The relevant passage in the Employment Tribunal's decision is at paragraphs 64-65. All paragraph 64 does is set out the wording of Regulations 27 and 28. All Regulation 65 does is set out the Applicant's contention that the correct figure is 103 hours, state that the Respondent does not accept it and conclude that there is no Regulation 28 agreement.
35. Paragraph 65 then simply goes on to assert:

65 "…therefore, the provisions of Regulation 27 apply so that the Applicants are entitled to be paid for the total number of hours spent carrying out their contractual duties pursuant to their contracts of employment, i.e. from 8.00am Monday to 3.00pm Friday."

There is no reasoning whatsoever.

36. In our view this is an error of law which requires the decision to be remitted to a fresh Employment Tribunal to hear evidence and determine the precise number of hours for each Respondent spent by her in carrying out the contractual duties required of (her) under (her) contract to do such work: Regulation 27. The Employment Tribunal itself made no findings of fact about this.
37. We do not feel able to substitute our decision on the facts. What we do say is that the Employment Tribunal is bound by the decision of the Court of Appeal in Walton v Independent Living Organisation [2003] EWCA Civ 199 and should therefore have concluded that time spent by the Respondents when they are not carrying out the contractual duties required of them under their contract to do the work cannot be counted for the purposes of Regulation 27: see the judgments of Aldous LJ at paragraphs 28-34 and Arden LJ at paragraphs 39-42. Thus when a Warden is at home on call but sleeping, washing, entertaining or carrying out domestic chores, she or he are outwith Regulation 27 and therefore not subject to the rights conferred by the Regulations. The precise number of hours in each case is a matter of fact to be determined by a fresh and full Employment Tribunal.

(6.2) Working Time Regulations

38. Similarly, we think the Employment Tribunal was wrong in law to decide that the whole 103 hours per week fell within the definition of Working Time contained in paragraph (a) of Regulation 2 (1) of the Working Time Regulations 1998. In our view the only proper construction of paragraph (a) is a conjunctive one. In order to bring herself within paragraph (a) of Regulation 2 (1) each Respondent must show that she can satisfy each part of that paragraph.
39. In our view, the phrase "at any period during which (she) is working, at (her) employer's disposal and carrying out (her) activity or duties" can only mean the hours actually spent in the duties listed in the "Warden's Duties" sheet (bundle page 65).
40. The definition of "working week" in paragraph 7 of the Statement of Particulars of Employment is as follows:

7 "Your working week is one of 5 days, providing 24-hour cover each day, Monday to Friday. Overtime is payable outside of the normal working week."

This does not bring any of the Respondents within the definition in paragraph 2 (1) (a) of the 1998 Regulations.

41. In our view, the SIMAP case is clearly applicable here: see paragraphs 50 and 52. See also the judgment of Buxton LJ in British Nursing Association v Inland Revenue [2002] IRLR 480 at paragraph 20. This is because of the failure of the Employment Tribunal to find the precise number of hours which could constitute working time other than the 103 hours.
42. On the second day of the hearing of this appeal I drew the attention of Counsel to the Opinion of the Advocate General in the case of Landeshaptstadt Kiel v Jaeger C-151/02 dated 8 April 2003. I invited Counsel to obtain copies of the Advocate General's Opinion and to make written submissions on that Opinion. It now appears that the judgment of the Advocate General will not be available in English for several months. Ms Ivimy has made written submissions based on the French text. Ms Omambala has not made any written submissions.
43. In Jaeger, the European Court of Justice had been asked whether periods spent on call by Mr Jaeger, a doctor, at his place of work (the Kiel City Hospital), constituted "working time" for the purposes of the Working Time Directive 93/104/EC.
44. The relevant facts were as follows. Mr Jaeger was required to be on call for six shifts each month, varying in length between 16 and 25 hours. During his on-call shifts, Mr Jaeger was required to remain on the premises of the Hospital and to be available to work immediately when needed. When not providing services, he was entitled to sleep in a room at the Hospital, shared with two colleagues, which was equipped with a bed. Pursuant to a collective agreement, Mr Jaeger's periods of activity could not exceed, on average, 49% of the time spent on call each month, but he could be required to work as much as needed in any one shift.
45. In his Opinion, the Advocate General referred to the decision of the European Court of Justice in SIMAP. The question in Jaeger was whether SIMAP applied where a worker was entitled to sleep whilst on call.
46. The Advocate General considered the three conditions in the definition of "working time", i.e. the conditions that the worker is "working, at the employer's disposal and carrying out his activity or duties." (French translation). He expressed the view that in order for time to count as working time, it is insufficient if only one condition is satisfied; it is necessary, and in most cases sufficient that two conditions be satisfied: see paragraph 25. The emphasis is the Advocate-General's emphasis.
47. The Advocate General commented on the different terminology used in the Spanish, French and Italian versions, on the one hand and the English, German and Dutch versions, on the other. In the former the first condition is that the worker remain "at work", whereas in the latter, it is that the worker be "working". The Advocate General's view was that if the formulation used in the latter versions was to be preferred, that would render the third condition redundant.
48. The Advocate General concluded that time spent on call by Mr Jaeger was working time, notwithstanding the right to sleep, because during the whole period two of the three conditions in the definition "Working Time" were met: Mr Jaeger was required to remain "at work" and he was "at his employer's disposal": see paragraph 45.
49. We have considered Ms Ivimy's written submissions and agree with her that the Advocate General's Opinion does not significantly add to the decision of the European Court of Justice in SIMAP. However, what the Opinion does do to clarify a point not entirely clear in the SIMAP decision, namely that when a worker is on call (i.e. available to carry out all duties) he satisfies the second condition of the definition of "Working Time" (because he is "at his employer's disposal") but he does not satisfy the third condition, because he is not actively "carrying out his activities or duties". That is so even though it may be a requirement of his contract that he be available to carry out duties. Accordingly, in the present case, it cannot be said that the third condition in the definition of "Working Time" is satisfied.
50. Neither is the first condition satisfied whichever language version of the text of the Directive is preferred. The Wardens cannot be said to be "working" when sleeping, resting, watching television, eating etc. The only basis upon which the Appellant argued that they are "working" during this time is that they are available to carry out duties during this time. That only satisfies the second condition which is distinct from the first condition.
51. Neither can it be said that the Appellants are required to remain "at work" when on call. That condition was held to be satisfied in Jaeger and SIMAP (on one part of that case) by a requirement to remain on the employer's premises at the workplace (the Hospital). Although in this case the Appellants are required to remain on site, they are also entitled to spend their time on call in their own homes. The need on health and safety grounds for workers to rest and relax (which the Working Time Directive and Working Time Regulations Protect) may be met by allowing them to remain in their own homes, in a way which cannot be done where they are required to remain in the workplace, even if some limited facilities are provided there enabling the worker to sleep. The requirement to remain on site cannot therefore be equated with one to remain in the workplace or on the employer's premises, and so does not satisfy the first condition.
52. Even if the requirement to remain on site is a requirement to remain "at work" with a result that two of the conditions in the definition of "working time" are satisfied, we do not accept that this is sufficient for time spent on call to count as "working time". The Advocate General is careful to say that in most cases fulfilling two requirements will be sufficient. He does not say that this will always be the case and on the particular facts of this case, where the requirement to remain "at work" may be met by remaining at home, we find that it is necessary for all three conditions to be fulfilled before time can be counted as "working time". The Appellants do not fulfil all three conditions, because even if they are "at work" and "at their employer's disposal", they are not "carrying out their activities or duties" when on call but not providing services to residents.
53. We must remit this case to a fresh Employment Tribunal to make any necessary findings of fact in the light of our judgment.

(7) Conclusion

54. For these reasons we allow the appeal against the decision of the Employment Tribunal, both in regard to the National Minimum Wage Regulations 1999 and the Working Time Regulations 1998. For the reasons we have given, we think that the Employment Tribunal erred in law in construing both sets of Regulations against the facts as found by it.
55. We have no doubt at all that it was not open to the Employment Tribunal to conclude, under either set of Regulations, that the 103 hours per week which the Respondents were required to be on site and living at home but on standby or callout in order to carry out their duties as provided in the list of "Warden's Duties" (bundle page 65) constitutes 103 hours unmeasured work, as defined by Regulation 27 of the 1999 Regulations. Neither did it constitute "working time", as defined by the definition in paragraph (a) of Regulation 2 (1) of the 1998 Regulations.
56. Although there was some evidence before the Employment Tribunal as to the actual number of hours that individual Wardens spent carrying out their duties, in our view this was inadequate because it consisted of activity sheets filled in by the Respondents (albeit not challenged by them). In addition, the Employment Tribunal heard only one Applicant about her particular circumstances. In any event, the Employment Tribunal made no specific findings of fact about the hours actually spent by each Applicant carrying out their duties, as specified in the "Wardens Duties" list above.
57. It may be that, albeit we have remitted the matter to a fresh Employment Tribunal, the parties will be able to come to an agreement. We noted the correspondence in the bundle before us as to negotiations between the parties to attempt to clarify and settle this matter. It seems to us that a great deal of time and cost would be saved if the parties were able to come to a daily average agreement for unmeasured work, as defined by Regulation 28 of the National Minimum Wage Regulations 1999. A similar agreement could be made for the purposes of deciding what is the appropriate number of hours for "working time", as defined by paragraph (a) of Regulation 2 (1) of the Working Time Regulations 1998.
58. We would like to think that there is still sufficient good will between the parties to enable an agreement to be made which will avoid the need for future litigation.