Appeal No. UKEAT/0500/05/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 5 December 2005
Judgment delivered on 31 January 2006

Before
HIS HONOUR JUDGE RICHARDSON
MR G LEWIS
MS P TATLOW

MRS E MACCARTNEY	APPELLANT

OVERSLEY HOUSE MANAGEMENT	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS TESS GILL
(of Counsel)
Instructed by:
Messrs Thompsons 
Solicitors
Price House
37 Stoney Street
The Lace Market
Nottingham 
NG1 1NF	
For the Respondent	MR MARTYN WEST
(Representative)
Peninsula Business Services
Riverside
New Bailey Street
Manchester M3 5PB

SUMMARY

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] IRLR 102 applied.

The Tribunal erred in law in holding that the Appellant was not working for the purpose of the Working Time Regulations 1998 during the whole time when she was on duty on call.   SIMAP [2000] IRLR 845 and Landeshaupstadt Kiel v Jaeger [2003] IRLR 804 applied; South Holland District Council v Stamp (EAT/1097/02) not followed.

The Tribunal erred in law in holding that the Appellant was undertaking “unmeasured work” for the purposes of the National Minimum Wage Regulations 1999.

HIS HONOUR JUDGE RICHARDSON

1.	If a worker who is provided with tied accommodation at her workplace is required to be available on site to answer calls throughout a period of 24 hours, but otherwise can sleep during the night or take recreation in her own home, is she working for the whole 24 hours for the purposes of the Working Time Regulations 1998 (“WTR”)?  That is the main question of law raised by this appeal.  It involves reconsideration of an earlier decision of the Appeal Tribunal, South Holland District Council v Stamp (EAT/1097/02) in the light of the subsequent decision of the European Court in Landeshaupstadt Kiel v Jaeger [2003] IRLR 804.  There are also questions as to a worker’s entitlement to a rest break, and as to the National Minimum Wage Regulations 1999 (“NMWR”).

2.	This is an appeal by Mrs Elizabeth MacCartney against a judgment of the Employment Tribunal sitting in Birmingham dated 23 June 2005.  She had brought claims against her employer on the grounds that she had been refused a minimum daily period of rest (WTR, Reg 10) a rest break (WTR, Reg 12) and proper remuneration (NMWR).  The Tribunal dismissed her claims, holding (by a majority) that she was not working for more than 40 hours per week.  

The Facts
3.	In 1834, the Alcester Poor Law Union built a workhouse.  150 years later it was converted into residences for people over 60.  Its name was changed to Oversley House.  Altogether there are 56 privately owned homes.  There are communal areas: a library, a lounge, a guest suite and a laundry.  At the top of the original main building, there are two flats for managers.  

4.	Mrs MacCartney was employed as a resident manager between 19 August 2003 and 13 August 2004.  Oversley House Management (“OHM”) was the residents’ association.  OHM employed her although, on a day to day basis, she reported to the managing agents for the development.  She moved into one of the flats.  

5.	As to remuneration, her contract of employment was succinct.  It said:
“Salary: £8,750”.
Later it said:
“Salary: paid monthly by last day of each calendar month”.

6.	As to hours, the contract was equally succinct: 
“Hours: 4 days per week of 24 hours on site cover”.
The contract of employment also provided:
“Rent Free Apartment: (Tied to the Position).  Expenses in respect of the apartment being general rates, water rates and electricity to be paid for the occupier.  If, for any reason, employment ends, the apartment must be vacated as required…”

7.	As the Tribunal found, Mrs MacCartney’s office was located within her flat.  Mrs MacCartney described the office, which was effectively in a cupboard area which was part of the hall.  It included shelving, a filing cabinet and all files to do with the running of Oversley House.  In a statement, Mrs MacCartney described the administrative work she had to do for OHM and said she would work during the evenings – at least one evening out of every four day working week.  The Tribunal did not make any findings in this respect.  

8.	Mrs MacCartney’s contract of employment set out her job description and the scope of her job.  She visited residents on a rota basis.  She liaised with their carers and their doctors as necessary.  She organised and ran communal facilities, taking bookings for the guest suite.  She let contractors in and out.  She organised social activities.  She arranged a duty roster to set out daily duties to cover for days off, holiday and illness – if necessary, contacting the managing agents to ensure that suitable personnel were brought in. 

9.	An important part of her duties was to respond to emergencies.  Each residence had an emergency pull cord.  It connected to the mobile phone which she had always to carry while she was on duty.  

10.	There were limits to her responsibilities.  She was not to undertake care or nursing duties.  She was not responsible for medical care or personal care of residents.  She might give “common sense assistance” – like helping carry shopping from a car to a home – but no more. 

11.	There were two managers.  Mrs MacCartney was on duty for four days each week.  Her fellow manager was on duty for the other three.  Between them, they agreed the roster so that they had alternate weekends off.  Arrangements for cover were made in the event of sickness of holiday.  

12.	When Mrs MacCartney was on duty, she would open the communal areas at 8am and close them at 5.30pm in the winter and 6.30pm in the summer.  As the Tribunal found, she was able to do most of her duties between 8am and 6pm, and arrange most of them to suit her own convenience.  

13.	However, she was on call for the whole 24 hours.  She was required to be on site or within a three minute radius – just far enough for her to take her dog for a walk.  She could not socialise in the town, or visit her daughter or family.  On the other hand, she could receive visitors, listen to music, eat, undertake other activities at home and, of course, sleep in her own bed.  

14.	While she was on call, she had to answer emergency and non-emergency calls.  She kept a record of calls answered between 6pm and 8am for the eight months from August 2003 to March 2004.  It averaged out at 3-4 emergency calls each month, and 10-11 non-emergency calls each month.  So, on average, the manager on duty would be called about every other day at some time between 6pm and 8am.  These calls could no doubt vary from the relatively trivial to the full scale emergency.  Apart from those calls, she was (as the Tribunal put it) not at the beck and call of the residents between 6pm and 8am.  The Tribunal did not make detailed findings about every aspect of Mrs MacCartney’s evidence.  For example, they did not make a finding as to whether she did paperwork in the evenings for at least two hours every working week.  The Tribunal, however, unanimously rejected an assertion that she was exaggerating her evidence.  They said she was a capable and dedicated person.  

The Tribunal’s Judgment and Reasons
15.	As regards rest breaks, the Tribunal unanimously concluded that Mrs MacCartney’s claim was not well founded.  The Tribunal said that there was no reason why she could not take her break of 20 minutes each day at a time that was convenient to her.  The Tribunal went on:
“Whilst she was required to carry the mobile telephone it was the Tribunal’s view that she certainly could have been able to take an uninterrupted rest break of 20 minutes away from her work.  There was no requirement that there had to be any form of designated break as the claimant claims.  If the claimant is correct in contending that often her breaks were interrupted then we agree with the respondent’s representative who said that there was no reason why she could not have restarted her break at some later time”.  

16.	The Tribunal, in its judgment and reasons relating to rest breaks, referred to Regulation 10 when it plainly meant to refer to Regulation 12.  The Tribunal had correctly set out the provisions of Regulations 10 and 12 in its reasons, and we are satisfied that the transposition of Regulation 12 and Regulation 10 is no more than a slip in dictation.  

17.	On the question of entitlement to rest periods, argument before the Tribunal related to the question whether Mrs MacCartney was working for the purpose of the WTR when she was on call.  It was not argued on behalf of OHM that the provisions of Regulation 12 were modified by or excluded by any provision in Part III of WTR.  

18.	By a majority the Tribunal rejected Mrs MacCartney’s argument that for the purposes of the WTR, she was working the whole time she was on call.  The majority relied on the EAT’s decision in South Holland District Council v Smith.  They regarded the South Holland case as “on all fours” with their case.  They reminded themselves of the purpose of the WTR, which as they put it was to ensure that people have rest, not necessarily a freedom to go about their own business in exactly the way they wish.  

19.	The dissenting member preferred the reasoning of a Tribunal decision, Davies v London Borough of Harrow (ET, 3301124/02).  He considered that the decision of the European Court SIMAP [2000] IRLR 845 should be applied.  He placed weight on the fact that Mrs MacCartney was on call at her place at work, severely restricted in where she could go, and required to keep the telephone on and respond to any emergency call.  As he put it, her flat was integrated into her work place.  

20.	For these reasons the Tribunal, by a majority, dismissed the claim for a daily period of rest.  Again, references to Regulation 10 and Regulation 12 have been transposed in the judgment of reasons.  As we have said, we are satisfied this is merely a dictating slip.  

21.	As regards the NMWR claim, the majority of the Tribunal held that the work undertaken by Mrs MacCartney was “unmeasured” work.  Again, they regarded themselves as following the decision in South Holland District Council v Stamp.  The majority, finding that Mrs MacCartney was engaged in unmeasured work and that not the whole period of 96 hours could be construed as working time, decided to take a pay reference period of 40 hours per week which (together with a weekly accommodation allowance) meant that she received in excess of the National Minimum Wage at all material times.

22.	The dissenting member found that the contract provided for salaried hours work and upheld that the whole period should be treated as salaried hours of work.  On this basis, Mrs MacCartney had received less than the National Minimum Wage, and was entitled to a sum comprising her loss.  

Submissions on Appeal
23.	On behalf of Mrs MacCartney, Ms Gill submits that the Tribunal erred in law in concluding that while Mrs MacCartney on call, it was sufficient that she could take a rest break when she wanted, and restart it if it happened to be interrupted.  Miss Gill refers to and relies on Gallagher v Alpha Catering Services Ltd [2005] IRLR 102.  

24.	Miss Gill submits that the whole 24 hour period when Mrs MacCartney was on call was working time.  She relies on the European cases:  SIMAP and Jaeger.  She submits that South Holland which was decided by the EAT after the Advocate General’s opinion in Jaeger but before the decision, must be reconsidered in light of the decision in Jaeger.  She has taken us through SIMAP, Jaeger and the respective Advocate Generals’ opinions.  Alternatively, she submits that South Holland is distinguishable on one of two grounds.  Firstly, in South Holland there was no finding that the warden’s homes were in themselves part of the place of work.  Secondly, in South Holland there were agreed facts that the maximum estimate working time of any warden was 37 hours per week, with a contractual provision for overtime for hours in excess.  

25.	As regards the NMWR, Miss Gill submits that the majority of the Tribunal were wrong to conclude that Mrs MacCartney was engaged on “unmeasured work”.  She submits that Mrs MacCartney was plainly engaged on salaried hours work.  Once that conclusion is reached, she submits, the rest follows.  In the course of her submission on the NMWR, she took us to British Nursing Association v Inland Revenue [2002] IRLR 480.  

26.	On behalf of OHM, Mr West submitted that the Tribunal reached the correct conclusion for the correct reasons.  He submitted that South Holland was correct, and in any event that the Appeal Tribunal should not lightly depart from its previous decision.  

The Working Times Regulations
27.	The following are the principal provisions of the WTR with which this appeal is concerned:
“2 (1) In these Regulations - 
….. "rest period", in relation to a worker, means a period which is not working time, other than a rest break or leave to which the worker is entitled under these Regulations;
….
"working time", in relation to a worker, means - 
(a) any period during which he is working, at his employer's disposal and carrying out his activity or duties,
(b) any period during which he is receiving relevant training, and
(c) any additional period which is to be treated as working time for the purpose of these Regulations under a relevant agreement;
and "work" shall be construed accordingly;
…..
10(1)	An adult worker is entitled to a rest period of not less than eleven consecutive hours in each 24-hour period during which he works for his employer
….
12(1) 	Where an adult worker's daily working time is more than six hours, he is entitled to a rest break.
(2) ….
(3)		Subject to the provisions of any applicable collective agreement or workforce agreement, the rest break provided for in paragraph (1) is an uninterrupted period of not less than 20 minutes, and the worker is entitled to spend it away from his workstation if he has one. 12(1)”. 

28.	Although these are the principal provisions relating to this appeal, it is important also to bear in mind the provisions of Part III of the WTR.  Within Part III, there are exemptions, some complete and some qualified, from the provisions of Reg 10 and Reg 12.  For example, by Reg 21, Reg 10(1) and 12(1) are disapplied in relation to workers of various kinds, including surveillance activities requiring a permanent presence, and activities involving the need for continuity of service or production.  Although Regs 10(1) and 12(1) are disapplied by Reg 21, an employer must see to it that an equivalent period of compensatory rest is made available: see Reg 24.   It was not argued by OHM that Part III applied to exclude or modify any obligation which it owed to Mrs MacCartney, but the provisions which we have set out above must be construed in the light of the WTR as a whole.

29.	The WTR were enacted to give effect to the Working Time Directive (Council Directive 93/104/EC, now amended and consolidated as Council Directive 2003/88/EC).  It is well established that such regulations should be construed so as to carry out the obligations of and not to be inconsistent with the underlying directive. 

The National Minimum Wage Regulations 1999
30.	Under NMWR it is first important to establish the nature of the work in which the worker was engaged.  There are four types: “salaried hours work”, “time work”, “output work” and “unmeasured work”.  This appeal is principally concerned with salaried work and unmeasured work.  
“The meaning of salaried hours work
4.  – 
(1) In these Regulations "salaried hours work" means work-
(a) that is done under a contract to do salaried hours work; and
(b) that falls within paragraph (6) below.
(2)	A contract to do salaried hours work is a contract under which a worker-
(a) is entitled to be paid for an ascertainable basic number of hours in a year (referred to in this regulation as "the basic hours"); and
(b) is entitled, in respect of hours that consist of or include the basic hours, to be paid an annual salary-
(i) by equal weekly or monthly instalments of wages, or
(ii) by monthly instalments of wages that vary but have the result that the worker is entitled to be paid an equal amount in each quarter,
regardless of the number of hours in respect of which the worker is entitled to the annual salary that are actually worked by him (if any) in any particular week or month; and
(c) has, in respect of those hours, no entitlement to any payment other than his annual salary or no such entitlement other than an entitlement to a performance bonus.
(3)	A contract that satisfies the conditions in paragraph (2) does so-
(a)	whether or not all the basic hours are working hours;
(b) whether or not the worker can be required under his contract to work, or does in fact work, any hours in addition to the total of hours in respect of which he is entitled to his annual salary, and regardless of any payments made in respect of those additional hours
….
(6)	The work done under a contract to do salaried hours work that falls within this paragraph, and is therefore salaried hours work, is work in respect of which the worker is entitled to no payment in addition to his annual salary, or to no payment in addition to his annual salary other than a performance bonus.
…..
The meaning of unmeasured work
6. 	In these Regulations "unmeasured work" means any other work that is not time work, salaried hours work or output work including, in particular, work in respect of which there are no specified hours and the worker is required to work when needed or when work is available”.

31.	Against this statutory background we now turn to our own conclusions.  

Rest Breaks
32.	In Gallagher v Alpha Catering Services, the Claimants were responsible for delivering food to aircraft and airport, and loading and unloading food from the aircraft.  Between loading assignments, they were on down time – not physically working, but required to remain in radio contact with their employers, and at their disposal.  It was argued by the employers that since the employees would get 20 minutes’ rest during their down time, the requirement of Regulation 12(1) for a rest break was satisfied.  The Court of Appeal, in refusing permission to the employers to cross-appeal on this point, rejected that submission.  Peter Gibson LJ said:  
“…it seems plain to me that down time in the present case…cannot be a rest break, and a fortiori a period of down time cannot retrospectively become a rest break only because it can be seem after it is over that it was an uninterrupted period of at least 20 minutes.  The worker is entitled under Reg 12(1) to a rest break if his working time exceeds six hours, and he must know at the start of a rest break that it is such.  To my mind a rest break is an uninterrupted period of at least 20 minutes which is neither a rest period nor working time and which the worker can use as he pleases”.

33.	It follows in our judgment that the reasoning of the Tribunal, although unanimous on this point, cannot be upheld.  On any basis, Mrs MacCartney had daily working time of more than six hours.  She was therefore entitled, if Reg 12 applied, to a rest break.  It was not sufficient to leave her to take such rest as she could during her working time.  She was entitled to an uninterrupted period of at least 20 minutes, and she was entitled to know at the start of the rest break that it would be such.

34.	As we have said, there are within part Part III of WTR various exemptions, qualified and unqualified, which modify the obligation under Reg 12(1); but no such provision was relied on before the Tribunal.  Since it is plain that by the very method of work imposed on her, OHM refused to allow her to exercise her right to rest breaks, the appeal on this ground must be allowed, and a declaration made that Mrs MacCartney in relation to rest breaks is well founded.

Working Time and Rest Periods
35.	We now turn to the main question of law raised by this appeal, namely whether it was permissible in law for the Tribunal to find that she was not working throughout the period when she was on call.  As we have seen, she was required throughout that time to be available to take calls, particularly emergency calls, direct from residents.  She was required either to be in her tied apartment or to be within a very short distance of it, and constantly to be armed with the mobile phone on which calls from residents were received.  Not only was her apartment embedded in the site where she worked, but it contained her office.  

36.	Working time is defined both by WTR and by the Working Time Directive as being any period when the worker “is working, at his employer’s disposal and carrying out his activity of duties”.  

37.	Before coming to the decisions in SIMAP and Jaeger, it is convenient to note two difficulties about this definition, which was described as “certainly less than totally clear” by Advocate General Saggio in his opinion for the European Court in SIMAP (paragraph 34).  

38.	Firstly, there is the reference to “is working” as the first element of the definition.  This is problematic for two reasons.  It is difficult to see what the words “carrying out his activity or duties” would add if this phrase has its normal meaning.  Further, the phrase “is working” appears to render the definition as a whole tautologous, since its purpose is to define “working time”.  

39.	In his opinion in Jaeger, Advocate General Colomer noted that the first element of the definition is expressed differently in different languages.  In Spanish, French and Italian the worker is required to be “at work” rather than “working”.  See paragraph 31 of his Opinion.  These texts place emphasis on the worker’s location rather than on his activities.  

40.	Secondly, there is a question whether the three requirements of the definition are cumulative.  This particularly exercised Advocate General Saggio in his opinion in SIMAP.  He held that the three requirements did not need to be met concurrently: see paragraph 36 of his opinion.  He did not think that a worker could be described as carrying on an activity when he was merely on call (paragraph 35), but since he thought the three requirements did not need to be met concurrently, this was not in his view decisive.  

41.	Against this background we turn to the decision in SIMAP.  This case concerned doctors working in primary care teams in the public health sector.  Such doctors worked a 40-hour week, but they were also from time to time on call overnight.  The question arose whether, when they were on call overnight, the entirety of the time spent on call must be regarded as working time.  

42.	The European Court held that time spent on call must be regarded in its entirety as working time if the doctors were required to be at the health centre.  However, if they were merely required to be contactable, only time linked to the actual provision of primary health care services was to be regarded as working time.  The European Court held (paragraph 48):
“…the characteristic features of working time are present in the case of time spent on call by doctors in primary care teams where their presence at the health centre is required.  It is not disputed that during periods of duty on call under those rules, the first two conditions are fulfilled. Moreover, even if the activity actually performed varies according to the circumstances, the fact that such doctors are obliged to be present and available at the workplace with a view to providing their professional services means that they are carrying out their duties in that instance”.

43.	It seems to us that the European Court took a different approach to that which had been taken by Advocate General Saggio.  He doubted whether the three conditions within the definition of working time were cumulative, principally because he doubted whether a doctor who was on call could be regarded as carrying out his duties.  The European Court, however, treated the three conditions as cumulative and held that a doctor on call who was required to be at his place of work was carrying out his duties.  

44.	SIMAP did not directly address the position of the doctor who was on call at his place of work, but permitted to sleep when not actually required to work.  This was the position in Jaeger.  When on call, the doctor was required to stay at the clinic.  He was provided with a room where he could sleep when his services were not required.  On average, he would spend less than half his time actually working.  Nevertheless, the European Court held that the whole period on call was “working time” for the purposes of the directive.  

45.	The Court applied the reasoning in SIMAP to such circumstances.  
“63		According to the Court, the decisive factor in considering that the characteristic features of the concept of working time within the meaning of Directive 93/104 are present in the case of time spent on call by doctors in the hospital itself is that they are required to be present at the place determined by the employer and to be available to the employer in order to be able to provide their services immediately in case of need.  In fact, as may be inferred from paragraph 48 of the judgment in Simap, those obligations, which make it impossible for the doctors concerned to choose the place where they stay during waiting periods, must be regarded as coming within the ambit of the performance of their duties. 
64.		That conclusion is not altered by the mere fact that the employer makes available to the doctor a rest room in which he can stay for as long as his professional services are not required. 
65.		It should be added that, as the Court already held at paragraph 50 of the judgment in Simap, in contrast to a doctor on stand-by, where the doctor is required to be permanently accessible but not present in the health centre, a doctor who is required to keep himself available to his employer at the place determined by him for the whole duration of periods of on-call duty is subject to appreciably greater constraints since he has to remain apart from his family and social environment and has less freedom to manage the time during which his professional services are not required.  Under those conditions, an employee available at the place determined by the employer cannot be regarded as being at rest during the periods of his on-call duty when he is not actually carrying on any professional activity”.  

46.	It is important to note precisely how the European Court stated its conclusion.  In paragraph 69 of its judgment, it held that the Directive precluded national legislation:
“…which treats as periods of rest periods of on-call duty during which the doctor is not actually required to perform any professional task and may rest but must be present and remain available at the place determined by the employer with a view to performance of those services if need be or when he is requested to intervene”.  

47.	In our judgment, when the principles laid down in SIMAP and Jaeger are applied to the circumstances of Mrs MacCartney, they lead to the conclusion that the whole period when she was on call constituted working time.  She was required to remain at or within a very short distance of her home, which was located within her place of work and contained her office.  She was never off duty.  She was always liable to answer calls directly from residents.  She had to remain available at the place determined by her employer with a view to performing services if need be or when requested to intervene.  

48.	In Mrs MacCartney’s case, the likelihood of her being telephoned and called out was very substantially less than the likelihood of a doctor being called out while at rest in a hospital.  But (unless the likelihood of call out is so insignificant as to be trifling) we do not think the extent to which the worker is likely to be called out (which might fluctuate from time to time) can be decisive of the question whether he or she is working.  Nor would it be satisfactory to ask whether the accommodation provided by the employer was intended to be, or might constitute, the worker’s home.  If this were the key question, it would be productive of much litigation, for many workers have accommodation which goes with their job, but maintain another home of their own.  In our judgment, the essential conclusion of the European Court in Jaeger is to be found in paragraph 69 of the judgment.  

49.	We consider that our conclusion is also supported by the way in which the European Court in Jaeger dealt with what might amount to compensating rest periods within the meaning of Article 17 of the Directive.  The European Court held that such periods must be characterised by the fact that:
“…the worker is not subject to any obligation viz-à-viz his employer which may prevent him for pursuing freely and without interruption his own interests in order to neutralise the effects of work on his safety or health…”
and
“in order to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours which must not only be consecutive but must also directly follow a period of work in order to enable him to relax and dispel the fatigue caused by the performance of his duties”.

50.	These conditions, in our judgment, are not met where a worker is required to be on call in tied accommodation which is part of his work place.  

51.	We also derive some support for our view from British Nursing Association v Inland Revenue [2002] IRLR 480 (Court of Appeal).  In that case, employees provided a telephone booking service whereby nursing homes and other institutions could obtain “bank nurses” on an emergency basis.  During the day, the booking service was operated by employees working at the employer’s premises.  However, during the night, the work was transferred to employees working from home.  Although the employees when at home were required to be available to deal with telephone calls, they could spend part of their shift doing other activities, such as reading or watching television.  The Employment Tribunal and the EAT concluded that employees operating the telephone booking service from home during night time hours were “working” throughout their shifts within the meaning of the NMWR even though they were not actually answering telephone calls for the whole of that time.  

52.	The Court of Appeal upheld that view, concluding that an employee engaged to operate a night time telephone service from home would be “working” when waiting to answer the telephone.  It was irrelevant that there might be few calls to field in the middle of the night.  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…”
Later he said:
“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”.

53.	The British Nursing Association case is not directly in point because it was concerned with the meaning of “time work” under the NMWR, not with the meaning of “working time” under the different provisions of the WTR.  However, it should be noted that (1) Buxton LJ reached his conclusion as a matter of the ordinary use of language and (2) he referred to SIMAP, which he distinguished on the basis that the doctors who were on call at home did no work at home, merely by being on call.  Here, Mrs MacCartney’s home was a place of work for her; she was not merely liable to be called out by some independent service, but was liable herself to take telephone calls from residents and deal with them.

54.	We turn finally to consider the unreported decision of the EAT in South Holland District Council v Stamp (EAT/1097/02) in which judgment was delivered on 3 June 2003.  The EAT had sight of the Advocate General’s opinion in Jaeger, but not the conclusion of the European Court, which was delivered on 9 September 2003.  

55.	In South Holland the Council provided a sheltered housing service to meet the needs of the elderly.  Wardens lived on site.  They were said to be on duty from 8am on Monday until 3pm on Friday and to be available to respond to emergencies through an emergency alarm system.  Throughout the period, they could only leave site with the prior knowledge and consent of the Council.  The maximum estimated working time of the warden was said to be 37 hours per week and overtime was payable outside of the normal working week.  The Tribunal held that the whole period from 8am on Monday until 3pm on Friday constituted “working time” for the purposes of the WTR.  

56.	The Appeal Tribunal reversed that conclusion, holding that neither the first nor the third condition applicable to “working time” was satisfied.  As to the first condition, the Appeal Tribunal held that wardens could not be said to be “working” when sleeping, resting, watching television, eating etc.  As to the third condition, the Appeal Tribunal held that the need on health and safety grounds for the wardens to rest and relax might be met by allowing them to remain in their own homes, in a way in which could not be done when they were required to remain in the work place, even if some limited facilities were provided in the work place enabling the worker to sleep.  Thus, the Appeal Tribunal said:
“The requirement to remain on site cannot therefore be equated with one to remain in the work place or on the employer’s premises, and so does not satisfy the first condition”.

57.	As regards this latter point, there may be a factual distinction between this case and South Holland.  South Holland seems to proceed on the basis that the wardens’ homes were not in any sense part of the work place or part of the employer’s premises.  In Mrs MacCartney’s case, the place where she lived was on the employer’s premises and was a work place.  

58.	In any event, however, we do not think the EAT’s reasoning can survive the subsequent decision of the European Court in Jaeger.  It is plain that workers who are on call at a place where they are required by their employer to remain may be said to be “working” when sleeping or resting.  Hence the Appeal Tribunal’s conclusion as to the first condition must be revisited.  Moreover, as we have seen, the question whether the third condition is fulfilled does not depend upon the precise nature of the accommodation supplied to the workers when they are on call, but on the question whether the workers are required to be present and remain available at the place determined by the employer.  

59.	Our conclusions therefore concerning South Holland are as follows.  Firstly, we think it may well be distinguishable on its facts from Mrs MacCartney’s case.  Secondly, however, even if it is indistinguishable, we think that its reasoning cannot survive the decision of the European Court in Jaeger.

60.	We may summarise our conclusion as follows.  A manager or warden of sheltered accommodation who is required by her employer to remain on call to residents and for that purpose to remain on or close her place of work is “working” while on call even if her employer provides her with a home at her place of work.  

61.	Again we record that it was not argued below that OHM’s obligation under reg 10 was excluded or modified by any provision of Part III of the WTR.  Accordingly, the Tribunal’s decision as to rest periods cannot stand, and there will be substituted a decision that Mrs MacCartney’s claim under Regulation 10(1) of the WTR is well founded.  The question of remedy will be remitted to the Tribunal.  

Minimum Wage
62.	We can deal with this aspect of the Tribunal’s decision more briefly.  

63.	The majority reached the conclusion that Mrs MacCartney’s work was unmeasured work by following the conclusion in South Holland: see paragraph 57 of the Tribunal’s reasons.  This was an error of law.  The contractual provision in the South Holland case (which we have already summarised above) was quite different.  The South Holland case provided no guidance as to the application of the NMWR in Mrs MacCartney’s case.

64.	In our judgment, Mrs MacCartney undertook “salaried hours work” within the meaning of Regulation 4 of the NMWR.  Her salary was expressed to be £8,750 in respect of “four days per week of 24 hour on site cover”.  This, in our judgment, was a contract to do salaried hours work: see Regulation 4(1)(a) and Regulation 4(2).  Mrs MacCartney was entitled to be paid for an ascertainable basic number of hours in a year: Regulation 4(2)(a).  She was entitled to be paid an annual salary regardless of the hours actually worked in any particular week or month: Regulation 4(2)(b).  She had, in respect of those hours, no entitlement to any payment other than annual salary: Regulation 4(2)(c).  Moreover the work which she did under that contract was work in respect of which she was entitled in addition to annual salary: see Regulation 4(6).  For the reasons we have given, Mrs MacCartney was at work throughout the period when she was providing on site cover, so Regulation 15(1) does not arise: see British Nursing Association v Inland Revenue at paragraph 18.  

65.	For these reasons, which are in substance those of the minority member of the Tribunal, the majority decision was wrong in law.  It follows inevitably that Mrs MacCartney’s claim that she had not been paid appropriately under the NMWR was well founded.  

Conclusions
66.	For these reasons we will allow the appeal and declare that Mrs MacCartney’s claims under Regulations 10 and 12 of the WTR and pursuant to the NMWR were well founded.  We will remit the matter for a remedies hearing.  We think it is desirable that the remedies hearing should be undertaken by a freshly constituted Tribunal; the previous Tribunal did not consider the question of remedies, and no useful purpose would be served by remitting it to the same Tribunal.