WORKING TIME

MacCartney v Oversley House Management

EAT: Judge Richardson, Mr G Lewis and Ms P Tatlow: 31 January 2006

The claimant, a residential manager in a home for people over 60, had contracted hours of “four days per week of 24 hours on site cover” during which she had to be on or near the premises, on call, attending to the residents with whom she was in contact by mobile phone, answering emergency and non-emergency calls or doing administrative work in a small office in her flat in the home. She received an annual salary of £8,750, paid monthly, and rent-free accommodation. She complained to an employment tribunal that the employers had unlawfully denied her periods of rest and rest breaks to which she was entitled under regulations 10(1) and 12(1) of the Working Time Regulations 1998. The claimant also complained that the work she performed was “salaried hours work” within the meaning of regulation 4(1) of the National Minimum Wage Regulations 1999, that the entirety of the time spent on call was “working time” and that she was, accordingly, receiving less than the minimum wage. An employment tribunal found that the claimant was not “working” the whole time she was on call and that she was able to take periods of rest while on call during periods of inactivity, and it dismissed her claims under the 1998 Regulations. In relation to the minimum wage claim, the tribunal held that the claimant was engaged on “unmeasured work” rather than “salaried hours work”; that, accordingly, she could not rely on the whole of her shift as “working time”; and that, on the basis of a 40-hour week, she received in excess of the minimum wage.

The claimant appealed.

The Employment Appeal Tribunal held:
(1) Under regulation 12(1) of the Working Time Regulations 1998, where a worker’s daily working time was more than six hours, she was entitled to an uninterrupted “rest break” of at least 20 minutes which she could use as she pleased and which could be seen as such before it started. On any basis, the claimant had daily working time of more than six hours but the method of work imposed on her meant that she was not allowed to exercise her right to such rest breaks.

(2) “Working time” within the definition in regulation 2(1)(a) of the Working Time Regulations 1998 included time when a worker, though not actually required to perform any task, was required to be present and remain available at a place determined by the employer in order to provide his services in case of need. Accordingly, the whole period spent by the claimant on call, when she was required to be within a very short distance of her home, which was within her place of work and contained her office, and to be available to perform services if needed, constituted “working time”. The claimant was, therefore, entitled to a daily rest period in accordance with regulation 10(1).

(3) The claimant’s contract was for work done under a contract to do “salaried hours work” within the meaning of regulation 4 of the National Minimum Wage Regulations 1999, in that she was entitled to be paid for an ascertainable basic number of hours in a year, to be paid an annual salary regardless of hours actually worked in any particular week or month and had no entitlement to payment other than annual salary. On that basis, the claimant was paid less than the minimum wage.

The appeal was allowed.

Appearances: Tess Gill (Thompsons, Nottingham) for the claimant; Martyn West, representative, for the employers.