EAT Working Time Regulations – TRADE UNION RIGHTS – Action short of dismissal
Working Time Regulations 1998 (‘WTR’) Regulation 2(1)(a) and (c) – ‘working time’
Trade Union and Labour Relations (Consolidation) Act 1992 section 146 – detriment
The Employment Tribunal having dismissed the Claimants’ claims of breach of the WTR and of detriment, the following questions arose on the appeal:
(1) When attending meetings at their workplace in their capacity as a representative of a recognised trade union or health and safety representative, were the Claimants working, at their employer’s disposal and carrying out their employer’s activities or duties? Alternatively,
(2) Did the time spent at such meetings fall to be treated as working time by virtue of the provisions of the recognition agreement between the trade union and the Respondent in this case? In any event,
(3) Were the Claimants subjected to a detriment when the Respondent refused to grant them a daily rest period of at least 11 hours between the end of those meetings and the beginning of their night shifts?
Held: WTR Regulation 2(1)(a) requires that each of the three elements it sets out must be satisfied for time to be ‘working time’ (applying South Holland District Council v Stamp [2003] UKEAT/1097/02), so: the worker must be working and at the employer’s disposal and carrying out his activities or duties. That said, it was appropriate to have regard to the aims of the Working Time Directive 2003/88/EC and the purposive approach to working time adopted by the European Court of Justice.
The Employment Tribunal had found that the Claimants had been ‘working’ when attending at the meetings in question (following Davies v Neath Port Talbot County Borough Council [1999] ICR 1132 EAT). It had, however, erred in adopting an unduly restrictive approach to the question whether the Appellants were at their ’employer’s disposal’. That did not require the Claimants to be under the employer’s specific control and direction in terms of the carrying out of their activities or duties at those meetings but allowed for a broader approach; where an employer has required an employee to be in a specific place and to hold him/herself out as ready to work for the employer’s benefit (which might include attending at trade union or health and safety meetings; allowing for a broad understanding of ‘benefit’, see Davies) that might be sufficient.
The Employment Tribunal similarly erred in adopting an overly narrow, contractual approach to the requirement that the worker is ‘carrying out his activity or duties’. There was no requirement that the activity or duties were solely those for which the Claimants were employed under their contracts of employment. If engaged in activities that were (in the broader sense, see Davies) for the benefit of the employer, arose from the employment relationship, and done with the employer’s knowledge, at and in an approved time and manner, that could be sufficient.
Given those conclusions under Regulation 2(1)(a) WTR, it was unnecessary to reach any concluded view on the other two questions arising on the appeal.
The parties being unable to agree as to the factual basis of the case before the Employment Tribunal, this matter would be remitted to the same Employment Tribunal for reconsideration in the light of the Judgment of the Employment Appeal Tribunal.
Eady QC J
[2015] UKEAT 0367 – 14 – 2302
Bailii
Working Time Regulations 1998 2(1)(a)
England and Wales
Employment
Updated: 30 December 2021; Ref: scu.546426