British NURSING Association v INLand REVENUE (National MINIMUM WAGE COMPLIANCE TEAM) [CA (Civil), 26/03/2002]
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE BUXTON,MR JUSTICE NEUBERGER |
| Judgment Date | 26 March 2002 |
| Neutral Citation | [2002] EWCA Civ 494 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A1/2001/1908 |
| Date | 26 March 2002 |
[2002] EWCA Civ 494
Lord Justice Peter Gibson
Lord Justice Buxton
Mr Justice Neuberger
A1/2001/1908
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(His Honour Judge Altman)
Royal Courts of Justice
Strand
London WC2
MR PAUL EPSTEIN (Instructed by Bates Wells & Braithwaite, Cheapside House, 138 Cheapside, EC2V 6BB) appeared on behalf of the Appellants.
MR TIMOTHY BRENNAN QC and MR WILLIAM HOSKINS (Instructed by Solicitors of the Inland Revenue, Somerset House, Strand, London WC2P 1LB) appeared on behalf of the Respondents.
Tuesday, 26th March 2002
I will ask Buxton LJ to give the first judgment.
This appeal from the Employment Appeal Tribunal in proceedings where it upheld the decision of an Employment Tribunal, concerns what is in truth a very short point on the construction of the National Minimum Wage Regulations 1999.
The British Nursing Association ("BNA"), who are the appellants both here and in the Tribunal below, is an organisation which provides what are described colloquially as "bank nurses" on an emergency basis. It provides and advertises a 24-hour booking service, which during the day is operated from its own premises, but during the night time services are provided by employees who work from home. During that period the members of the staff who are concerned answer calls that are diverted to their home number and take action on the request by identifying and contacting the person who is actually to do the work. Further detailed information about the terms and conditions of the members of staff involved is to be found in a statement of agreed facts that was helpfully appended to its judgment by the Employment Appeal Tribunal, and which I equally append to this judgment.
The members of staff are paid an amount per shift. Whether they are paid an amount that satisfies the requirements of the national minimum wage therefore depends on the amount of time during the shift for which they are to be considered as actually working in the terms relevant to the Regulations.
The appeal involves the construction of Regulations 3(a) and 15(1). 3(a) reads:
"In these Regulations 'time work' means—
(a) work that is paid for under a worker's contract by reference to the time for which a worker works and is not salaried hours work".
Regulation 15(1) is of importance in this appeal and reads as follows:
"Provisions in relation to time work
15.-(1) In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purpose of doing time work and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purpose of working."
The parties asked the Employment Tribunal to determine certain specific issues, and its determination on those points is set out in preliminary paragraph 1 of its decision and, for the purposes relevant to this appeal, reads as follows:
"On the matters of principle which the parties asked the Tribunal to determine, the Tribunal determines as follows:
(i)In accordance with Regulation 15(1) of the National Minimum Wage Regulations 1999, the workers are engaged in time work at times when they are awake and awaiting calls at home.
(ii)Time work does not include time when they are asleep in accordance with Regulation 15(1)."
However, that Tribunal made a specific finding in paragraph 37 of its determination:
"… in this case we find that the workers are working for the whole of their shift."
Its reasoning to that effect is to be found in paragraphs 26 and 27 of its determination:
"26.In this case the workers are employed to answer the telephone, to assign bank nurses and, to a limited extent, to give advice. It is a 24 hour service. During the extended day, this service is provided from offices around the country. During the night, broadly from 8.00 pm to 9.00 am, it is from the homes of the workers who are the subject of this notice. It is a seamless service. In other words, the client does not know the location of the person who is answering the telephone.
27.We therefore find that these workers are 'working' through the nightshift answering the clients' telephone calls and there is, therefore, no difference between the day workers and the night workers, except that the night workers work from home."
That reasoning was criticised as suggesting that the workers spend the whole night actually on the telephone. I would, however, respectfully agree with the Employment Appeal Tribunal at paragraph 14 of its judgment that, whilst the Employment Tribunal expressed itself somewhat loosely in these particular paragraphs, it was in fact basing itself on the whole of the evidence as to the nature of the duties of the workers already set out or referred to.
On the facts as set out, I would respectfully agree with the Employment Appeal Tribunal in paragraphs 23 to 26 of its judgment that the Employment Tribunal were entitled to find that the workers were working throughout their shift. That conclusion is criticised in paragraphs 2(1)(a) of the grounds of appeal, a criticism renewed before us by Mr Epstein, as being inconsistent with the statement of agreed issues that was put before the Employment Tribunal to the effect that the staff "spend a proportion of their shifts not actively engaged in work but awake and required to answer telephone calls". That complaint is, however, unduly pedantic. It is plain that by their formulation of the factual position, the parties intended to use the concept of being...
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