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LELR Issue 114 (September 2006)

Contents

In the News
Working Time
Working to Time
You're How Old?
Stressed Out
Time Transfer
A Trusted Policy
Paying by Results

Working to Time

Anderson -v- Jarvis Hotels

In yet another case about the definition of working time – Anderson -v- Jarvis Hotels – the employment appeal tribunal (EAT) has applied working time case law to a breach of contract wages claim, moving it on from its normal context of the national minimum wage.

It said that an employee must be regarded as working (even if they are asleep), if their employer requires them to be on site as part of their contractual duties.

What were the basic facts?

Mr Anderson worked for Jarvis Hotels as a guest care manager between April 2003 and January 2004. As part of his duties he had to sleep over in the hotel several nights a week, in case there was an emergency such as fire or a flood, although he only lived a short distance away. During that time he was called out once.

He was disciplined in November 2003 for leaving the hotel between 3.30am and 4.01am during one of these sleep-over periods, for which he received a verbal warning.

However, the hotel did not pay him for the sleepovers, relying on the argument that he did not have to work during them. Mr Anderson claimed that his employer was in breach of contract.

What did the tribunal decide?

The tribunal decided against him, arguing that, as emergencies were rare events, he was not at his employer’s “disposal” nor was he carrying out “activities or duties” during that time. He should only be paid, they said, if he carried out some specific activity during the sleep over period.

They distinguished this case from Simap (see Working Time) by saying that the claimants in that case were “in the front line” whereas Mr Anderson was “not responsible during the night for the hotel – that was the responsibility of the night porter”.

What did the parties argue on appeal?

Mr Anderson argued that sleeping over was clearly one of his duties, and that his presence in the hotel was obligatory. He pointed out that, under the Working Time Regulations (WTR), on-call duty has to be regarded as “working time” if the worker has to be physically present on the employer’s premises.

The intensity or frequency of work was not relevant to whether or not the period was deemed to be working time. Nor was the fact that the on-call period included periods of sleep or inactivity. And nor did he have to be in the front line of responsibility for the time to be working time.

The hotel relied on the case of MacCartney (see Working Time) to substantiate its claim that, if an employee was very unlikely to be called out during an on-call period, then it could not be regarded as working time. It pointed to the fact that not only did Mrs MacCartney have to be available, but that she often had to respond to emergencies.

What did the EAT decide?

The EAT disagreed. It said that an employee must be regarded as working (even if they are asleep), if their employer requires them to be on site as part of their contractual duties. The fact that Mr Anderson was not in “the front line” in terms of his responsibilities was irrelevant and any attempt to limit MacCartney in that way was wrong.

The EAT concluded that “being present in the premises was, primarily, what he was employed to do during sleep-over periods. That was, accordingly, his ‘work’. I am readily satisfied that the Tribunal were in error in taking the view, as they did, that he could only be regarded as working if he was carrying out some specific activity during a sleep-over period. That approach simply misses the point.”

As Mr. Anderson was an hourly paid worker, the EAT held that he should be paid at those rates for the time that he was working.