Working Time Case Update: April 2003

Working time decisions are beginning to have a significant impact, and employers would to well to consider the full meaning of the regulations and how they deal with them.

The recent decision of Bamsey -v- Albion Engineering [reported on the Workplacelaw Network, 16 April 2003] suggests that overtime which is not contractually guaranteed - even if habitually worked - does not form part of the calculation of pay for holiday purposes. There may well be an appeal.

Still on the subject of holiday pay, the Scottish Court of Session has confirmed the Scottish Employment Appeal Tribunal decision in MPB Structures Limited -v- Munro [reported on the Workplacelaw Network, 9 April 2003]. Holidays must be taken and paid for. It is not adequate, even in high turnover industries, to provide a rolled-up hourly rate including holiday pay.

The Working Time Regulations are European wide, and decisions elsewhere can have an impact on the construction and implementation within the UK. The case of Landeshauptstadtkiel -v- Jaeger examined the issue of ‘on-call’ time.

Herr Jaeger was a junior doctor in a German Hospital and was on call six times per month. He received free time and pay to compensate for this. When on call he had to stay at the hospital but was provided with a bed to rest when not required. Herr Jaeger argued that, under the Working Time Regulations, periods when he was on call constituted working time for which he should be paid.

The European Court of Justice considered that the provision of a bed protected the health of the Doctor but - because he was on call - periods of sleeping did not constitute rest periods. It was confirmed that if an employee is at his place of work, at his employer’s disposal and carrying out employer’s activities then it is working time.

This could have an implication in a number of industries apart from just the health sector. Mariners sleeping on board may occasionally be on call, as can staff in residential care homes and such like. Anyone using staff on call may need to think about their current practices. There are of course already difficulties in calculation of minimum wage for periods on call.
This document is for general guidance and research purposes only, and does not purport to give professional advice. Please check the date at the top of the article; the Workplace Law Network retains historic articles for general research.