Walton v Independent Living Organisation Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUMMERY,LORD JUSTICE SEDLEY,Lord Justice Aldous |
| Judgment Date | 26 February 2003 |
| Neutral Citation | [2002] EWCA Civ 1201,[2003] EWCA Civ 199 |
| Docket Number | No A1/2002/1061,Case No: A1/2002/1061 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2003 |
[2002] EWCA Civ 1201
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL
Royal Courts of Justice
Strand
London WC2
Lord Justice Mummery
Lord Justice Sedley
No A1/2002/1061
MR ROBIN ALLEN QC (Instructed by Leo Abse Cohen of Cardiff) appeared on behalf of the Applicant
The Respondent was not represented and did not attend
This is a renewed application for permission to appeal. The position is that the applicant, Miss Walton, made an application to the Employment Tribunal, presenting an IT1 on 20th November 2000. The complained of unlawful deductions by her employers, the Independent Living Organisation Ltd. When the matter was heard in the Employment Tribunal her claim was dismissed. The case was heard by the chairman alone who, in his extended reasons of 30th April 2001, explained his conclusion that there had been no unauthorised deductions. The appeal to Employment Appeal Tribunal was dismissed on 7th May 2002.
An application was made to this court for permission to appeal. I refused that on paper on 11th June 2002. The case arises out of the national minimum wages legislation and concerns the position of a carer, such as Miss Walton was, for an elderly person living at home. She was caring for Miss Jones who suffers from epileptic fits. The question arose as to whether Miss Walton was paid less than the national minimum wage in respect of the discharge of her duties, which were performed by working three days on and three days off. She was paid £31.40 a day on the basis that she was working an average of six hours fifty minutes a day carrying out tasks for Miss Jones.
There is a point of general importance raised on the interpretation and application of the National Minimum Wage Regulations 1999 as to whether this is a case to which the time/work provisions of Regulation 3 apply or whether this is a case to which the unascertained and unmeasured work provisions of Regulation 6 apply.
The court has been assisted by a note of argument on the renewed application for permission. The argument has been submitted by Mr Robin Allen QC, who has highlighted the main points for his submission that the case raises an important point about the nature of work in the Regulations. The points are not covered precisely by prior authority and, for the reasons he sets out in the note, he says there is an arguable case for which permission to appeal should be granted.
On reconsideration of the matter I agree that this is an appropriate case for granting permission to appeal. Mr Allen has given an estimate that the hearing would take one day. He wishes to submit a fresh consolidated skeleton argument for which I would give him leave, provided it is done by 30th September 2002.
For the reasons set out in the note of argument, I would grant this application.
I agree.
Order: Application granted
[2003] EWCA Civ 199
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Aldous
Lady Justice Arden and
Mr Justice Jacob
Case No: A1/2002/1061
Robin Allen QC and Paul Epstein (instructed by Leo Abse & Cohen) for the Appellant
Andrew Hillier QC and Andrew Blake (instructed by Eversheds) for the Respondent
This is an appeal with permission of this Court against a decision of the Employment Appeal Tribunal of 25th April 2002 which dismissed an appeal by Miss Julie Walton against a decision of an Employment Tribunal of 30th April 200In essence those Tribunals dismissed Miss Walton's claim that she had been paid less than the national minimum wage.
The respondent, the Independent Living Organisation Ltd, provides carers for people who because of their age or disability need assistance to maintain their independence and remain in their own homes rather than being placed in a residential home. Miss Walton was a carer employed by the respondent. She was allocated to a Miss E. Jones who suffered from epilepsy and had fits on a regular basis. She was a relatively easy client needing a minimum of supervision. She could attend to her own needs i.e. she could feed herself, tidy her room, attend to her personal hygiene. The appellant was responsible for her washing, ironing, shopping, preparation of meals and medication. Miss Jones spent most of her time watching television and doing jigsaws. She usually retired to bed between 9.30 and 10 and slept through the night. Thus Miss Walton was very rarely disturbed during the night.
Miss Walton worked three days on, four days off. For this she was paid £31.40 per day. Miss Walton had free accommodation and meals, but she still had the expense of maintaining her own home. When not providing a service to Miss Jones she could please herself as to what she would do, but she was required to be on the premises in case Miss Jones required assistance which occasionally she did, sometimes during sleeping hours. Miss Jones kept a detailed record of epileptic fits.
The appellant's statement of terms and conditions stated:
"4. Wages
Your rate of pay will vary according to the assignment you are undertaking. This may be at an hourly, daily or weekly rate. Your manager will advise you of your rate of pay prior to each assignment. Wages are payable by direct credit transfer to your bank account each Tuesday for the week ending the previous Friday before last.
Hours of Work
Your hours of work will vary according to the assignment you are allocated. Because of the nature of the services offered by the company, there is no guarantee of continued work each week. You will only be offered work when in the opinion of the company there is a suitable assignment available for you. Likewise, there is no obligation for you to provide a minimum number of hours in any day or week. However once engaged on an assignment you are required to complete it and devote your full attention and abilities to the needs of the client to ensure the satisfactory provision of such services.
Because of the nature of assignments, you will normally only be offered an assignment on an alternate week basis. It should also be understood that if a client requests that you cease servicing them or in the opinion of the company you are no longer suitable for a particular assignment, the company reserves the right to remove you from that assignment without any liability to you."
In July 1999 the respondents were notified by the National Minimum Wage Team at the Inland Revenue that a complaint had been received by them in connection with an employee. Prior to a visit from that team, the respondents prepared an assessment form for each client. A Miss Butler visited Miss Walton on 5th August 1999 and went through the form with her. Together they assessed the time she required for each of the tasks that she carried out for Miss Jones. At the end of the exercise the appellant signed the form. It records that on average it took 6 hours 50 minutes to carry out the tasks that were listed including the personal care and bathing supervision of Miss Jones.
The Tribunal rejected the submission that Miss Walton was "supervising" when not carrying out tasks because she was not required to give Miss Jones her exclusive or principal attention. She could carry on about her own activities without let or hindrance. The purpose of her being there was to offer assistance if it became apparent that Miss Jones needed it, principally if she had a fit.
In the Full Reasons the Tribunal recorded that Miss Butler had said "that each case was looked at on its own merits". Miss Walton's pay was assessed according to the difficulty and duration of specific tasks which she had to perform.
It was, as I have said, not in dispute that the appellant was paid £31.40 per day. Thus if the relevant working hours were 24, her hourly rate of pay was £1.31 which was a figure substantially below the national minimum single hourly wage rate which was at the time £3.60. If however the relevant working hours were 6 hours 50 minutes, then her wage exceeded the national minimum.
Before this Court it was submitted that the relevant regulations required the national minimum rate to be ascertained by dividing her pay of £31.40 by 24. Thus the appellant had not received the national minimum rate that was required.
Both the Employment Tribunal and the Employment Appeal Tribunal rejected that submission. They concluded that the regulations required that the daily average rate should be ascertained using the daily average agreement which came to 6 hours 50 minutes. Thus her wages per hour were £31.40 divided by 6.83 hours giving a wage per hour of £4.60.
The National Minimum Wage Act 1998 received the Royal Assent on 31st July of that year. It is a framework Act which provides for the detailed provision of its operation in regulations. Thus section 1 requires workers to be paid at least the national minimum wage and section 2 requires the Secretary of State to make provision in regulations for how the hourly rate deemed to be worked is arrived at. Section 5 required the Secretary of State to refer certain matters to the Low Pay Commission before making regulations. Those matters included such things as the...
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