THE INDUSTRIAL TRIBUNALS

CASE REF:	3254/01

APPLICANT:	Norman Ekin

RESPONDENT:	United Hospitals Health & Social Services Trust 

DECISION
The unanimous decision of the tribunal is that the respondent did not breach the Working Time Regulations (Northern Ireland) 1998.   

Appearances:
The applicant was represented by Ms Mary Larkin, Barrister-at-Law, instructed by Campbell Stafford, Solicitors.
The respondent was represented by Mr Frances O’Reilly, Barrister-at-Law, instructed by the Central Services Agency. 

1.	The issue for the tribunal is whether the applicant received appropriate compensatory rest in accordance with Regulations 10, 11, 21 and 24 of the Working Time Regulations (Northern Ireland) 1998 between 18 May 2001 and 18 August 2001.
2.	The applicant is one of a number of Estates Officers and his duties and responsibilities relate to hospital(s) under the control of the respondent.  His claim is that the respondent has acted in breach of the Working Time Regulations (Northern Ireland) 1998 in failing to provide him with compensatory rest periods between 18 May 2001 and 18 August 2001.
3.	The respondent concedes that the applicant is a “worker” within the meaning of the Working Time Regulations and as such is prima facie entitled to the benefit of Regulations 10 and 11.
4.	Regulation 10 entitles the applicant to a rest period of not less than eleven consecutive hours in each twenty-four hour period which he works for the respondent.  Regulation 11 entitles the applicant to an uninterrupted rest period of not less than twenty-four hours in each seven day period during which he works for the respondent or to one uninterrupted rest period of not less than forty-eight hours in each fourteen day period. 
5.	Regulation 21 (c) of the said Regulations states that subject to Regulation 24, Regulations 10 (1) and 11 (1) and (2) do not apply in relation to a worker:-
“(c)  where the worker’s activities involve the need for continuity of service or production, as may be the case in relation to -
(i)	services relating to the reception, treatment or care provided by hospitals or similar establishments, residential institutions and prisons …”
6.	Regulation 24 deals with compensatory rest 
“(24) where the application of any provision of these Regulations is excluded by Regulations 21 or 22, or is modified or excluded by means of a collective agreement or workforce agreement under Regulation 23 (a), and a worker is accordingly required by his employer to work during a period which would otherwise be a rest period or rest break – 
(a)	his employer shall wherever possible allow him to take an equivalent period of compensatory rest, and
(b)	in exceptional cases in which it is not possible, for objective reasons, to grant such a period of rest, his employer shall afford him such protection as may be appropriate in order to safeguard the workers health and safety.
7.	The applicant’s normal working hours were 9 am to 5 pm Monday to Thursday and 9.00 am to 4.30 pm on Fridays.  The applicant was also required periodically to be “on call” and that period would last approximately one week.
8.	It is accepted that during the on call periods which the applicant worked between 18 May and 18 August 2001 he received phone calls which necessitated advice and instruction over the telephone.  At no time was he required to physically attend the hospital.  The applicant was free to pursue his own activities during on call periods and was provided with a pager so that he could be contactable at all times without his movements being restricted.  It is accepted that generally telephone calls received during the on call period are of very short duration and normally involve identifying the appropriate tradesmen who should be contacted to deal with the problem which has arisen at the hospital.  It is also accepted that generally speaking the calls come at reasonable times.
9.	The applicant’s claim is that receiving telephone calls during his on call duties disturbed his “eleven consecutive hours” daily rest on 28 July 2001, 29 July 2001, 1 August 2001 and 18 August 2001.  He further claims that his weekly rest was disturbed in the fortnight commencing 11 June 2001, 25 June 2001 and 23 July 2001. 
10.	On 28 July 2001, the first occasion on which the applicant did not get his eleven consecutive hours rest, the calls received were at 8.24 a.m., 11.10 a.m., 2.10 p.m. and 11.55 p.m.  On 29 July 2001 the first telephone call was received at 8.05 a.m. and the second was received at 12.55 a.m.  On Wednesday 1 August 2001 he received the first call at 4.45 p.m. and the second at 10.15 p.m.  On 18 August 2001 he received calls at 1.30 a.m., 1.48 a.m., 9.04 a.m., 12.09 p.m. and 5.38 p.m.  This was the only occasion that the applicant gave evidence that he was unable to get back to sleep.  The following day was Sunday, which was not a normal working day.
11.	On a number of occasions, the applicant covered the on-call duties of other colleagues voluntarily, as was the normal arrangement between Estates Officers.  The applicant is the only Estates Officer employed by the respondent who has complained that the respondent has failed to provide compensatory rest.
12.	Although the applicant alleged that his health had been affected by the disruption to his rest entitlement, no medical evidence was produced to substantiate that claim.  In the absence of such evidence the tribunal does not accept that his health was affected.
13.	At the material time the respondent operated an adhoc system of compensatory rest whereby officers disturbed by phone calls were entitled to request a “late start” on the following day, normally up to 11.00 am.  The tribunal does not accept that the applicant was not aware of this arrangement.
14.	Following the introduction of the Working Time Regulations (Northern Ireland) 1998, Senior Estates Managers entered into negotiations with the Estates Officers and Trade Union with a view to completing a collective/workforce agreement within the meaning of Regulation 24 of the Regulations.  An agreement in writing was signed by the parties on the 22 May 2002 to take affect from 1 May 2002.  It is accepted that as part of the agreement, the respondent made a payment of £3,000 to every Estates Officer, including the applicant.  However, the purpose of the payment was in dispute.  The respondent contended that the payment was made “to reflect the protracted period it took to resolve the issue and in recognition of the goodwill of the professional and technical officers in maintaining arrangements until the agreement of May 2002”.  The applicant contended that the payment reflected back pay following successful negotiations for increased remuneration for on call duties.  The tribunal is satisfied on the balance of probabilities that the respondent’s contentions are correct.  We have had regard to the addendum to the May 2002 agreement.  That addendum clearly explains the purpose of the payment as follows:-
“To reflect the protracted period it has taken to resolve this issue and in recognition of the goodwill of the professional technical officers in maintaining the current arrangements, a one off ex-gratia payment of £3,000 gross will be paid by the end of May 2002 to each of the following professional and technical officers currently involved in the provision of out of hours service and will be involved in the revised arrangements”.
15.	It is clear from the European Court of Justice decisions in Landeshauptstadt Kiel –v- Jaeger [2003 IRLR 804] and Simap –v- Conselleria de Sanidad y Consumo de la Generalidad Valenciana that periods of on-call when the employee is free to manage his/her time subject only to the constraint that he or she must be contactable at all times is not working time for the purposes of the legislation.  In the Simap case it was held that only time linked to actual provision of primary care services by doctors must be regarded as working time.  The situation is clearly different if the doctors are required to be physically present on the hospital premises during the on call period.
16.	Applying the reasoning in these cases, the tribunal is satisfied that only the time spent by the applicant in answering telephone calls from the hospitals and a reasonable period to get back to sleep (if the applicant was asleep when the telephone call was made) can constitute working time.  The respondent concedes that this is the position.
17.	The difficulty arises in ascertaining the period of time which constitutes “equivalent compensatory rest” for these disturbances.  The Department of Trade and Industry (DTI) Guide “Your Guide to the Working Time Regulations” states that compensatory rest “is a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.”
18.	The applicant’s contention is that if his eleven consecutive hours rest is disturbed, he is entitled to a further complete eleven hours, commencing with the time the disturbance ended, or shortly afterwards.
19.	The respondent contends that such an interpretation could not possibly be correct.  Mr O’Reilly submitted the following example by way of illustration:
“During the week that the applicant is on call, he leaves his place of work as usual at 5.00 pm.  At 10.00 pm that evening he receives a phone call to his house from the hospital and he provides certain advice or instructions.  He is most probably awake at 10.00 pm and, according to witnesses on behalf of the respondent, the phone call probably lasts between 15 and 20 seconds.  At 8.30 am the following morning he receives a second phone call from the hospital and again provides advice or instructions and is probably sitting in his own home having been awake for some time.  Because these two phone calls have prevented the applicant from achieving a rest period of not less than eleven consecutive hours in a twenty-four hour period, the applicant maintains that he is entitled to a compensatory rest period of eleven hours either immediately following or soon after the second phone call.  This argument applies equally to the weekly rest period.  The applicant acknowledges that two similar phone calls each day during a week on call would entitle him, if his argument is correct, to avoid going to work during normal working hours for the full week.  This is despite the fact that neither phone call wakened the applicant and both were of very limited duration”.
20.	The purpose of the Working Time Regulations which implement Directive 93/104, is to protect the health and safety of workers.  At paragraph 91 of its decision in Landeshauptstadt Kiel –v- Jaeger, the European Court of Justice, having reminded itself of the purpose of the Directive said.  
“Therefore, ... each employee must in particular enjoy adequate rest periods which must not only be effective in enabling the persons concerned to recover from the fatigue engendered by their work, but also preventative in nature so as to reduce as much as possible the risk of affecting the safety or health of employees which successive periods of work without the necessary rest are likely to produce...”
The Court relied on the case of United Kingdom v Council [1997] IRLR 30 ECJ as justification for interpreting the Directive “...widely as embracing all factors, physical or otherwise, capable of affecting the health and safety of the worker in his working environment, including in particular certain aspects of the organisation of working time.
21.	
At paragraph 94, the Court describes “equivalent compensatory rest periods” as
“...characterised by the fact that during such periods the worker is not subject to any obligation vis-a-vis his employer which may prevent him from pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health.  Such rest periods must follow on immediately from the working time which they are supposed to counteract in order to prevent the worker from experiencing a state of fatigue or overload owing to the accumulation of consecutive periods of work.
22.	In our view, since the health and safety of employees is of paramount consideration, a common sense approach must be adopted to individual circumstances.  We agree that the starting point should be “a period of rest the same length as the period of rest, or part of the period of rest, that a worker has missed”.  However, clearly that approach may not sufficiently protect the health and safety of workers in all cases.  A worker whose sleep is disturbed by a series of short telephone calls and who is unable to return to sleep may require several hours compensatory rest in order to safeguard his health and safety.  We consider that an employer should adopt a flexible approach to the issue.  
23.	However, we do not accept the applicant’s submission that any disturbance of his eleven hours daily consecutive rest, no matter how short the disturbance or how much rest he had before the disturbance, means that he must be given a further eleven hours consecutive rest by way of compensation.  We can find nothing in either the legislation or the authorities to suggest that the applicant’s submission is correct.
24.	During the relevant period the applicant was entitled to request a “late start” at work “normally up to 11 am”.   We are satisfied that that arrangement allowed the applicant to take an equivalent period of compensatory rest.  We are further satisfied on the evidence before us that that arrangement did provide appropriate protection to safeguard the applicant’s health and safety.  The applicant only gave evidence of one occasion when he was unable to get back to sleep after two telephone calls, which was 18 August.  The following day was a Sunday which was not a normal working day.
25.	The application is therefore dismissed.

Chairman:

Date and place of hearing:  29 May 2003 and 20 August 2003, Belfast

Date decision recorded in register and issued to parties: