The employers provided ‘bank nurses’ for nursing homes and other institutions on an emergency basis, including a 24 hour telephone booking service. At night employees were based at home. The ‘duty nurse’ would answered a diverted phone call and then respond. The employee was paid an amount per shift. The Minimum Wage Compliance Team thought those employed on the night shift should be paid the minimum hourly rate for each duty hour. The employers responded that they did not work throughout the shift. Those employed on the night shift did ‘time work’ and the Employment Tribunal held that they were engaged in ‘time work’ both when they were awake and awaiting calls at home. The employees were ‘working’ for the whole of their shift answering the clients’ telephone calls. The Tribunal saw no difference between the day workers and the night workers except that the night workers worked from home. The Employment Appeal Tribunal dismissed the appeal.
Held: The appeal was dismissed. Both tribunals could find that the workers were working throughout their shift. As an issue of ordinary use of language it was self evident on the facts as found that they were indeed working throughout the night. ‘No one would say that an employee sitting at the employer’s premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night-time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home. It was indeed as a continuation of the day-time service that the employer presented the night-time service to his employees and recruited them for that purpose. That is illustrated by the job description document that was shown to us . . ‘
Buxton LJ said: ‘I have to say that not only was it open to the Employment Tribunal and to the Employment Appeal Tribunal to find that the workers were working throughout their shift, that also, as an issue of the ordinary use of the English language, it seems to me self-evident on these facts that they were indeed so working. No one would say that an employee sitting at the employer’s premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night-time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switch board to employees sitting waiting at home . . . That in the event there may during the middle period of the night be few calls to field is nothing to the point. It is for the employer to decide whether it is economic and necessary to his business to make the facility available on a 24-hour basis. If he does so decide, it is the availability of the facility, not its actual use, that is important to him; and that is what he achieves by the working arrangements described in this case’.
Judges:
Buxton LJ, Sir Peter Gibson, Neuberger J
Citations:
[2002] EWCA Civ 494, [2003] ICR 19, [2002] IRLR 480, [2002] Emp LR 668
Links:
Statutes:
National Minimum Wage Regulations 1999 15
Jurisdiction:
England and Wales
Citing:
Appeal from – The British Nursing Assocation v The Inland Revenue National Minimum Wage Compliance Team EAT 8-Jun-2001
The applicants appealed a finding that their employees were workers within the regulations. The question related to whether bank nurses, who were available to be called on the telephone at home during the night, were working as they waited. The . .
Cited by:
Cited – Walton v The Independent Living Organisation CA 26-Feb-2003
The worker was employed as a carer for a lady who would need support at unpredictable times, but on average she would need some 6 hours’ care a day. Whilst at work, the claimant would stay with her patient for a full 24 hour day, but, except when . .
Cited – Scottbridge Construction Ltd v James Wright OHCS 25-Oct-2002
The claimant worked as a night watchman, on 7 nights a week between 5pm and 7am. His principal purpose was to be available there to respond if an alarm was set off by an intruder. When not performing a specific task, he could do whatever he wanted. . .
Cited – MacCartney v Oversley House Management EAT 31-Jan-2006
EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 08 June 2022; Ref: scu.191967