Mrs J Frudd and Mr I Frudd v The Partington Group Ltd: 2406291/2015
EMPLOYMENT TRIBUNALS
Case No 2406291/2015
Between
Mrs J Frudd and Mr I FruddClaimantThe Partington Group LtdRespondent
Before
Employment Judge HolmesIn person for claimantMiss A Del Priore (instructed by Counsel) for respondentDate 18 September 2019
JUDGMENT
ON APPLICATION FOR DISCLOSURE ORDER The claimants’ applications for disclosure orders are dismissed. The tribunal has made further case management orders under separate cover.
REASONS
HEARING
[1]The Tribunal this morning has been considering an application made by the claimants for orders for specific disclosure, in relation to documents that they seek in connection with the claims that they make for arrears of wages, and in particular underpayments of the National Minimum Wage. These are claims that they have brought before the Tribunal and upon which there has previously been a Tribunal judgment, but which has been the subject of a successful appeal to the Employment Appeal Tribunal, and which is therefore to be re-heard before a different Tribunal in the near future. In the course of preparation for that re-hearing the claimants have asked the respondent for certain documents in correspondence and, not having been satisfied with the response that they received, although they received some of the documents that they sought, they made application originally by a letter dated 15 June 2017 to the Tribunal for orders for specific disclosure, under rule 31 of the 2013 Rules. The claimants today have been represented by Mrs Frudd, although Mr Frudd is also present, and the respondent has again been represented by Ms Del Priore of counsel.[2]In terms of the original application, that was for some 12 classes of documents, and they were set out in the claimants’ letter to the Tribunal of 15 June 2017. However, following further communications between the parties and the respondent’s response to the claimants, some of those applications have fallen away, and consequently the applications are only pursued today in relation to items 2, 3, 5, 8 and 10 of the original application of 5 June 2017. The respondent’s response to that application was set out in the letter to the Tribunal and the claimants of 5 July 2017, and the claimants further commented upon that response in a further letter to the Tribunal of 23 July 2017, all of which the Employment Judge has read. Mrs Frudd made her applications this morning and spoke to the applications made in writing and also prepared another document, which she described as a “statement” but was in many ways really the submissions that she wanted to make in relation to the various applications that were made. The Tribunal has read that document as well.[3]In terms of background, these claims arise out of the engagement of the claimants at the respondent’s caravan park in Fleetwood, and the claims that they make in relation to what could be described as “on call time”, and in particular call outs that they carried out during their working for the respondent, in respect of which they claim to be entitled to be paid in circumstances where they submit that their actual pay would fall below the National Minimum Wage if their rate of pay was assessed appropriately. That will be the main issue in the forthcoming re-hearing of these claims.
Relevant law
[4]The claimants’ positions were that they lived on site in a caravan and were required, and this is common ground between the parties, to carry out certain works of an on call nature when they were residing there and to respond to various emergencies and call outs occasioned by anything that occurred on site at the relevant time, and it is in connection with their activities and what they carried out when actually working that the claimants’ applications are directed.[5]At the outset of the application the Employment Judge clarified with the parties as to whether there was any issue as to the relevance of the documents sought, and the respondent did not take any issue on the relevance of those documents. Consequently that has not been a feature of this application. The real issue has been why the relevant documents have not been disclosed, and whether they can and should be ordered to be disclosed at this stage.[6]Going through the various types of documents referred to and the enumeration in the letter of 15 June 2017, the first class under item (2) is copies of all call out payment claims during the emergency payment period as shown in payment records from March 2009 to March 2015, and Mrs Frudd explained to the Tribunal, which, of course, has not had the benefit of having heard the original claim or , indeed, having considered any of the evidence in the original claim, so she has helpfully explained to the Tribunal today the relevance and nature of these particular documents. She has been able to provide to the Tribunal examples of this type of document that the respondent has been able to provide to the claimants. These are payment claim forms which came into being in the course of the claimants’ employment, when they were called out and wanted to submit for payments to be made this particular type of form, which is a weekly form, a pro forma document apparently, into which they would then enter details of any particular times that they had been called out , which they would then pass on to the manager to then pass on and process for payment purposes. There was only ever one copy of this document it seems, and once it was passed on to the manager and then to the administration it would not be seen again, and indeed has not been seen again, in most instances, until these proceedings. The claimants’ complaint is that whilst the respondents have disclosed some of these documents in relation to the relevant period they have not disclosed all of them, and there must be more of them and there are, as it were, gaps in the sequence of documents disclosed.[7]In relation to this class of document the claimants say, and it is not disputed, she knows that these documents exist or existed because in many cases she completed them. They would be compiled by her, in fact in most cases, and submitted to the manager, so she has had sight of these documents once, obviously going back some time, and so knows firsthand that they once existed. Indeed clearly insofar as the respondent has been able to disclose many of these documents, they did, and they agree that they did. The problem arises in relation to those which are missing.[8]In addition to that class of document under item (3), relating to it is any other document or record which would relate to the call out payments. The claimants were paid, and records have been disclosed of payments made to them in respect of a number of call out occasions, and what the claimants have been seeking, either through the payment claim forms I have referred to, or any other form of documents, is the supporting documentation which, as it were, would marry up with the payments made. They require this to demonstrate the range of duties that they carried out on these various call outs, pointing out that the reason for the call out could vary from anything as serious as the police attending, to someone having difficulty with their lights or something of a more mundane nature, but they want to use this material to demonstrate the range of activities that they were actually carrying out on the occasions when they were called out. This second class of document at item (3) is a further class in that the claimants have seen some weekly hours sheets described as “manager’s weekly hours sheets” which are not the manager’s own hours, but are records apparently compiled by the manager in question at any given time of the hours worked by the staff as a whole, including the claimants, and that would also include hours when they had responded to calls, and this is another route by which the claimants would seek to identify not only when they were called out, but also why they were called out, and some of the documents that have been disclosed of this nature would assist in that regard as well.
Conclusions
[9]The respondent’s response to both of these classes of documents is simply that yes, they did exist and it is accepted that, both in relation to the payment claim forms and the weekly hours’ records, there would indeed once have been such documents. The respondent’s difficulty is that search though they might, and they claim that they have done, they cannot find the missing ones and consequently cannot disclose them. This is not to be read as in any way sinister, but down probably to human error, but despite searches being made and the solicitor for the respondent making repeated requests of the respondent, they have been unable to locate these missing documents.[10]The Tribunal has been told of the nature of the respondent’s business, which is a relatively small one. There is a Head Office a little way up the road from the site where the claimants worked. There is one person responsible for the administration of the payroll which is done internally, and that is a Sadie Welch. She has searched for the records in these documents but simply cannot find them. There is no explanation the respondent can give for this, other than perhaps human error, but there is no event relied upon, in terms of any catastrophe or anything of that nature affecting the business , that might explain why these records are incomplete.[11]The next item sought by the claimants at item (5) on the list are records, notes or documents relating to the service supplied by the company to its customers who had Ramtech alarms. Mrs Frudd explained to the Tribunal that this is a reference to an optional service provided to owners or renters on the caravan park who would have installed the Ramtech alarm system as part of which there was a monitoring service which the claimants in fact provided, because these were silent alarms and there was a pager which would go off and consequently the claimants would respond to any such alarms going off and the purpose of this request is to seek disclosure of any relevant contractual terms between the respondent and the caravan owners who had Ramtech alarms. The respondent says there are no such documents. Mrs Frudd was able to explain that she herself had some involvement in this matter because whilst she was working there, certainly up until 2012, she caused letters, and indeed drafted or used a template of a letter, to be sent to the relevant owners charging them for this particular service, but she accepts that this ceased after 2012. In terms of anything thereafter she is unable to point to any actual documents but says there must be some because the owners were being charged for this service. There has apparently been a leaflet referred to by the respondent which relates to this service, but other than that there has been nothing further that has been disclosed.[12]In terms of the purpose of this request, again it relates to the claimants’ contentions as to the nature of the work that they did, and the call outs that they responded to, and, particularly in the light of the Employment Appeal Tribunal’s ruling in relation to the legal test to be applied, they wish to demonstrate that in performing this service they were discharging what would be a legal obligation between the respondent and the owners, and that they were consequently providing this in circumstances that would be relevant to the determination of their entitlement to the National Minimum Wage in respect of this element of their working time. So that is the purpose of the application, but in terms of the issues, there seems no issue but that there were contractual arrangements between the owners and the respondent in relation to the provision of this alarm service. There also seems no dispute that it was part of the claimants’ duties to attend to those alarms when they were on call, and in terms of any issue being taken as to whether this was or was not pursuant to any legal obligation between the respondent and their customers, the respondent has not, on the face of it taken any point on that, but obviously if that was an issue and a serious issue this may have greater importance. For the present, however, given the respondent’s position in relation to that, and that it seems no real issue turns upon it, whilst there may well have been further communications between the respondent and their customers about these terms, at the end of the day it seems to the Tribunal these documents would not advance the matter very much further, and, in any event, the respondent says again there are no such documents. After 2012 Mrs Frudd is unable to establish that there in fact are, although she contends again that there must be.[13]Similarly in relation to item (8) this too relates to the Ramtech alarm system and relates to the cancellation of that contract. This was apparently in 2015 but Mrs Frudd clarified that none of the claimants’ claims are based on the provision of these services after that date, and it is the claimants’ case that this contract was cancelled, and indeed the respondent agrees that that is the case. As to whether the respondent has supplied actual evidence of the cancellation there seems to be issue, although the respondent apparently has disclosed something that may be no more than a request about cancellation, but it is the claimants’ case that this contract was cancelled and the respondent’s case, as far as one can tell at this stage, is that that is the case. So to that extent this seems to be something of a non issue. Again the respondent says they have disclosed what they have and there is simply no more.[14]Finally in relation to item (10), this is a request for records of the hours worked by security, security in fact being one person, a person called Steve, who provided security services, probably as a direct employee , and certainly in that role in 2014. Again the respondent has given partial disclosure of his working times but there is a gap of the weeks between weeks 9 and 18 in these records as well. Again the respondent says this is a gap that it cannot plug and it cannot find the relevant records and consequently cannot disclose what it does not have. There is a suggestion, however, that there was an email in relation to a change in this person’s hours, and although an application was previously made before the original hearing for this document, it has not been pursued, and it is not one of the matters that is sought in this hearing today, but to the extent that there may be a relevant email at least showing a change of hours, which again Mrs Frudd advances because she had seen it, then it may well be that that can be unearthed, but it is not actually one of the matters before the Tribunal today; it is the record of the hours for the missing weeks that is.[15]So in essence that is the application, and the resistance to it. In terms of whether an order should be made, the Tribunal predominantly, of course, considers relevance: if a document is relevant it should be disclosed.[16]In terms of whether an order should be made, on the other hand, a Tribunal cannot and should not order disclosure of a document unless satisfied that it is in the possession or control of the person against whom the order is sought, in this case the respondent.[17]In relation to three of the classes of documents referred to in this application: the payment claim forms, the weekly hours records and the working hours of the security guard, the position is that there has been partial disclosure but there are gaps, and acknowledged gaps, in that disclosure and it is those gaps in relation to which the claimants make three of these applications.[18]No evidence has been put before the Tribunal from Ms Welch or anybody else about the non availability of these documents, and clearly Mrs Frudd is able to point to their likely existence, which is conceded by the respondent. But in the absence, however, of any evidence to the contrary the Tribunal has no reason at this stage to doubt the respondent’s bona fides in simply saying that these documents cannot be found. That is ultimately perhaps a question of fact and the Tribunal could stand the matter down for that to be determined and evidence to be called, but that seems to me to be an unnecessary delay, and can be dealt with, if appropriate, in the final hearing. It may well be, as Ms Del Priore has suggested that evidence should be given about the absence of these documents, and it may well be that if a witness statement from Ms Welch setting out the searches and enquires she has made and why she believes the documents are no longer available to be found that that will satisfy the claimants, but in terms of the evidence before me today the Tribunal is satisfied that the respondent, on the face of it, does not have these documents, not least of all because they have given partial disclosure and the point made by Ms Del Priore is a good one: if the respondent was seeking to hide significant pieces of evidence why would it disclose partial pieces of this evidence but not other parts?[19]Further in any event the point is made, and again it is a valid one, that ultimately the absence of this documentation will rebound not upon the claimants, but upon the respondent. In terms of what they seek to establish, particularly in terms of what work they carried out, which is really what all of this is directed to, they will give evidence about that in their witness statements and in their oral evidence before the Tribunal, and to the extent that that is challenged, and it seems a little unclear at the present as to the extent to which it has been but to the extent that that is challenged, the respondent without the documentary evidence that it has failed to disclose may be in a difficult position to challenge the evidence of the claimants as to what they actually did.[20]Bearing in mind, particularly in relation to the National Minimum Wage, section 28(2) of the 1998 Act does provide that where a complaint is made, for example as this is, of unauthorised deduction from wages, it shall be presumed for the purposes of the complaint so far as relating to the deduction of that amount that the worker in question was remunerated at a rate less than the National Minimum Wage unless the contrary is established. So if there is any doubt as to whether or not the claimants have been paid the National Minimum Wage , the burden is upon the respondent to show that they have, not upon them to show that they have not. To that extent, therefore, the absence of the documentary evidence from which they may seek to establish that will rebound upon the respondent and not upon the claimants, a point which the respondent is doubtless well aware of. Ultimately, disclosure is a matter for them, and if they cannot disclose those documents they must accept the consequences.[21]Those seem to me to be very good reasons why, notwithstanding the claimants’ obvious concern at the absence of these documents and the desire to have them to establish their case, (because in many ways that is what they are seeking to do: they are looking for these documents effectively to back up what they say) the tribunal should not make an order.[22]In terms of whether the Tribunal should make any orders today the Tribunal concludes that it should not order disclosure, primarily, of documents that the respondent does not on the face of it have, but in any event, even if that is doubtless and may open to question, the non disclosure of these documents ultimately is a matter that should not impede the claimants’ case and is more likely to impede that of the respondent.[23]For those reasons the application for specific disclosure is dismissed.
Conclusions
[1]This is a claim for unpaid wages. It was originally presented by both claimants on 29 June 2015. Linked to this claim is a complaint of underpayment of holiday pay. Both elements are based on the claimants’ contention that they were not paid the National Minimum Wage for time that they spent on call.[2]The claim raises a question which is simple to ask but hard to answer: Was their time on call “time work” for the purposes of the National Minimum Wage Regulations 1999 and the National Minimum Wage Regulations 2015? It is common ground that, if it was all time work (as the claimants contend), the claimants were not paid the National Minimum Wage. Conversely, the claimants accept that if none of that time was time work (which is what the respondent argues), the claimants were paid at least the National Minimum Wage and their claim must fail.[3]During discussions both at the start of the hearing and in closing submissions, all parties agreed that this was not an “all or nothing” case. It is open to the Tribunal to find that some periods of time on call counted as time work and some did not.
Relevant law
[4]This case has been heard and determined by the Tribunal once before, but the judgment was successfully appealed to the Employment Appeal Tribunal whose judgment is reported at [2017] ICR 1186. No doubt with the benefit of that appeal and the subsequent detailed judgment of Simler P, both Mrs Frudd and Ms Del Priore demonstrated an impressive working knowledge of the legal principles which greatly helped me to identify the real issue in the case.[5]Mrs Frudd confirmed that the claimants’ case rests entirely on the definition of “time work” in regulation 30 NMWR. She does not argue that the claimants fell within the deeming provision in regulation 32. Thus the claimants set the respondent the challenge of proving that the claimants were not actually working during their time on call. If they were merely “waiting to work” as Ms Del Prior pithily put it, they were not employed on time work at those times.
Evidence
[6]I was referred to an agreed bundle of documents which ran to some 503 pages.[7]Mr Ward, Mrs Walsh, Mrs Challis and Mr Challis gave oral evidence for the respondent. The claimants then gave evidence on their own and each other’s behalf.[8]This is a convenient opportunity for me to record my impressions of the witnesses who gave evidence. Broadly speaking, I accepted that all witnesses were trying to tell me the truth. Ms Walsh’s evidence I found to be particularly robust. Mrs Challis seemed to me to give evidence in a straightforward manner and, to the extent that she was able to give a first-hand account of what she had seen and heard, I accepted her evidence. With that same qualification I accepted the evidence of Mr Challis. Mr Ward’s evidence needed to be approached with some caution. As recorded in my findings of fact, the relationship between Mr Ward and the claimants was under significant strain by the time the claimant's employment ended. Mr Ward has an ongoing employment relationship with the respondent and a vested interest in the Tribunal finding that wardens were free to leave the Park. Mrs Frudd seemed to be giving an honest account of events which, when given in sufficient detail, I was able to accept. As for Mr Frudd, I accepted parts of his evidence, but was wary about what he said about Mr Ward for the reasons I have already given. I also thought that in relation to Saturday nights, Mr Frudd’s evidence was a little exaggerated and further undermined by the absence of any reference to it in his witness statement.
Facts
[9]The respondent owns a number of caravan sites including Broadwater Park near Fleetwood. The Park is situation 0.6 miles from Broadwater Village, 1.4 miles from Fleetwood, and 2 miles from Cleveleys.[10]Within the perimeter of the Park are 309 caravan pitches. About 240 of these are usually occupied by privately owned caravans. Some 15-20 caravans are usually available for hire, although it would be rare for all of those caravans to be fully occupied. The remaining pitches are either empty or occupied by caravans for sale. It is common ground that this is a relatively quiet caravan site. A significant proportion of the privately owned caravans would be vacant at any one time. Long-term residents tend to know their way around and do not need regular assistance.[11]The Park’s site licence requires, amongst other things, that “the site shall be provided with an electrical supply sufficient in all respects to meet all reasonable demands of the caravans situated on them”. Contrary to the claimants’ interpretation, the licence does not require the respondent to ensure that each individual caravan is constantly connected to the electricity supply. Rather, it relates to the overall electrical capacity for the site as a whole.[12]Guests hiring caravans are given a leaflet setting out what they can expect during their stay. Under the heading “Reception” the leaflet states: “When reception shuts we do have a warden on call who will help you at any hour of the night with any queries. You will find the number on the reception door and your caravan keyring and will also be given it on arrival”[13]This information is replicated on the respondent’s website.[14]The respondent’s Managing Director is Mrs Challis. Her husband is employed by the business as a General Manager. During the period that is relevant to this claim, the Park was managed by Mr Challis, Mr Boardman, Mr Foster, then Mr Ward.[15]The calendar for the Park is divided into two seasons. The open season runs from 1 March to the first Monday in November each year. During the open season, owners and other key holders have 24 hour access to their caravans. During the closed season, which accounts for the remainder of the year, the Park gates are locked after 4.30pm.[16]During most of the time that is relevant to this claim, caravan owners were given the option to purchase an alarm for their caravan. The service was provided by a company known as Ramtech. When the alarm was set, it could be triggered by a break-in (which never actually happened) or by the occupant entering the caravan and failing to deactivate the alarm. When an alarm was triggered, it would activate a remote pager held by the on call warden or receptionist. They would then attend the caravan to investigate. The range of the pager was between four and seven miles. By far the most common cause of alarm call-outs was the customer accidentally omitting to deactivate the alarm on arrival at the caravan. Occasionally customers would deliberately trigger the alarm in order to get priority service or to test the response time. Genuine emergencies were extremely rare. Because of this fact, the respondent stopped its subscription to Ramtech in about December 2014.[17]On purchasing the alarm, customers were given a leaflet from Ramtech explaining how the system worked. It contained this sentence: “If your alarm is activated, the Park security team will be alerted immediately so that they can respond.”[18]The leaflet did not specify the response time in minutes. The context, however, clearly implied that the “security team” would respond promptly. In practice, the respondent instructed the on call team to respond within 15 minutes. No member of staff was ever disciplined for a late response to an alarm call. That said, there is no evidence of any occasion of a member of staff taking longer than 15 minutes to respond. The alarm would keep alerting the pager until it had either been reset at the caravan or deactivated remotely using the computer system at reception. Only receptionists were able to carry out this latter task. This problem was more theoretical than practical. Most call-outs resulted in the alarm being deactivated at the caravan.[19]The claimants began working for the respondent on 8 June 2008. Mr Frudd was employed as a Warden; Mrs Frudd as a Receptionist. They were jointly recruited as a team and provided with a caravan in which they were expected both to live.[20]The claimants were one of three Warden/Receptionist teams, who were all cohabiting married couples. The other two couples were Mr and Mrs Lineker and Mr Ward and his wife, Roxanne. (It is unclear what Roxanne’s surname was so I will continue to refer to her by her first name). Mr Ward was acknowledged to be the most senior Warden on site, sometimes referred to as the “foreman”. He was later promoted to manager. Roxanne was promoted to Head Receptionist in 2013.[21]During the early days and weeks of his employment, Mr Frudd was shown the ropes by Mr Ward. As he showed Mr Frudd round the Park, he told Mr Frudd that he would be expected to carry out a check of the Park whilst on call if security were not working that night. He was also required to check the Park during winter months.[22]Following successful completion of their probationary period, the claimants were given a joint contract of employment. Here are some of its relevant provisions: “Joint Appointment Your appointment is a joint appointment; the company recognises that both of you will contribute as a team to the success of the business…Each of you will be treated as being responsible for the acts and omissions of the other;…Each of you accepts personal liability and responsibility to ensure that the particular thing is done or not done, as the case may be. … This contract of employment annuls any previous agreement whether verbal or written given to you at any time. … You are required to reside on the premises in caravan accommodation…in order properly to perform [your] duties. … Hours of Work [Definitions of the open season and closed season; and a requirement to take an unpaid lunch break which during the open season was one hour and during the closed season was half an hour]. … You will also be required to enter your name on a rota for the purpose of being on call to deal with customers’ enquiries or requests for assistance after completion of your shift whether the shift in question finishes at 4.30pm, 5.00pm or 8.00pm. You will be on call until 8.00am the next day. Whilst on call you will also be required to cover the alarm pager and attend the relevant caravan. You will be paid for emergency call-outs in the open season from 10.00pm until 7.00am and in the closed season from 5.00pm until 8.00am at the rate of £7.50 per person per call-out.”[23]Before they signed the contract, Mr Challis told the claimants that it would be acceptable for them to leave the Park whilst on call, provided that they remained contactable at all times. I accept the claimants’ evidence that, whatever may have been said to this effect during the probationary period, it was not repeated afterwards.
Disposal
[24]The working relationship between the claimants and the Linekers was friendly and cooperative. From time to time, they would informally cover each other’s shifts and on call periods to enable the couple rostered to be on call to leave the Park. Mrs Frudd and Roxanne got on well. Mr Frudd had little contact with her. Between the claimants and Mr Ward, relations became far more strained, although they were not openly hostile. For example, Mr Frudd complained to the then manager, Mr Foster, that Mr Ward was regularly leaving the Park on a Friday whilst on call in order to go fishing. Mr Foster told Mr Frudd that Mr Ward was allowed to do so because he was the foreman. Mr Ward was much more reluctant than the Linekers to cover any shift or on call period that he was not specifically rostered to do. This was partly because they had a young child. By the time the claimants retired in 2015, they had fallen out with Mr Ward to the point where Mr Ward did not attend their retirement party.[25]Early in the claimant's employment, Mr Challis had a practice of informally debriefing on call staff in the mornings. When he arrived at the Park, he would go into the “brew room” and ask the Receptionist or Warden who had been on call the previous night if anything had happened. They would usually say no. Mr Challis trained subsequent managers to follow the same practice, but we accept the claimants’ uncontradicted evidence that this practice was not frequently followed. When they were asked about incidents since the end of their previous shift, they would generally only mention call-outs during the night. Events that had taken place earlier in the evening were less significant from their point of view because, as will be seen, they rarely resulted in any payment. Minor or trivial incidents that happened in the evening therefore rarely deserved a mention.[26]For most of the time to which this claim relates, the claimants were on call on Thursday and Saturday nights each week. Every other week they were additionally rostered to be on call on Monday nights. During the Christmas period, when the Park was completely closed, the claimants would spend four consecutive 24 hour periods on call, as did the other two couples. Exactly where these blocks of four days fell for each couple was negotiated between them and agreed. There was also a small element of shift swapping that blurred the edges of these blocks of days.[27]In 2010 or possibly Christmas 2011, the respondent provided a mobile phone for use by the on call team. From that time the number of the mobile phone was displayed at reception for use out of normal reception hours. Whilst on call the claimants would take the alarm pager and, from 2010 or 2011, the mobile phone.[28]Until the end of 2014, there was a sign at reception stating the times when each team was on call and the location of the caravan where each team could be found.[29]Sometimes a customer would see a member of staff who was not on call, but buttonhole them nonetheless. That avoided the need for them to approach or telephone the on call Warden or Receptionist. When they were telephoned, the claimants were required to assess the nature of the query or request for assistance, and to decide whether they could deal with it and which one of them would be the most appropriate person to respond. They would also have to decide whether the call was sufficiently urgent to require a response then and there or whether it could wait until reception opened in the morning. In practice, they invariably tried to respond to situations straight away.[30]The claimants were not paid at all for minor tasks between 5.00pm and 10.00pm. They were not paid for answering the telephone, responding to alarm calls, or dealing with short enquiries. If a particular call required them to work for more than half an hour or so, the Park Manager would, in his discretion, encourage them to make a claim for paid overtime. Anything less than that was considered by the claimants and managers alike to be “part of the job”.[31]The respondent did not keep any records of the claimants’ activities whilst on call prior to 10.00pm unless there had been a specific agreement to pay them overtime for a lengthy task. I have therefore tried to reconstruct their evening oncall activities based on their oral evidence. Typically the busiest time in the evening was between 5.00pm and 8.00pm. Examples of tasks done in the evening (as opposed to night time) were: 31.1. Showing around prospective customers who were interested in buying a caravan. This did not fall within the strict terms of their written contract as the claimants were dealing only with prospective as opposed to actual customers. Nevertheless we accept the claimant's evidence that the respondent would have regarded the claimants as offering poor service whilst on call if they had simply turned would-be purchasers away. 31.2. Welcoming late arrivals. Customers hiring caravans would not always arrive on time. They were informed that check-in would take place from 3.00pm, but not specifically told that they would not be allowed to check-in after 5.00pm. There was no question of the claimants being able to turn them away. There were at least six occasions when Mrs Frudd had to admit hire caravan guests after reception had closed. She believed that it was “part of the job”. Significantly, I also find that that is what the Park Managers and Mr and Mrs Challis also believed. As they saw it, this was part of what they had to do in return for being provided with free accommodation. 31.3. Giving keys to sublet visitors. Private owners were informed that they would be allowed to sublet their caravans to other visitors who would be entitled to obtain a key from reception at any time prior to 11.00pm. They were asked to complete a form to enable the key to be issued more efficiently. From time to time, visitors arrived without the appropriate form and Mrs Frudd would attempt to establish their identity and their relationship to the caravan owner before issuing the key. Typically visitors would request keys between the hours of 6.00pm-9.00pm. At the height of the season, this would happen at least once a fortnight and sometimes more often. It very rarely happened during the closed season. 31.4. Conducting the evening check of the Park when there was no security guard present. 31.5. Dealing with incidents of noise or unruly behaviour. If this happened in the immediate vicinity of the claimants’ caravan and they were both at home, the claimants would inevitably have attended to such incidents as concerned neighbours; but there were other times when the claimants would observe such incidents and intervened because it was considered part of their job. 31.6. Responding to alarm calls, which were rarely genuine emergencies. 31.7. An example of an evening activity being considered to be part of the job happened on 4 April 2010. The Mr Frudd was alerted to the possibility that a group of travellers might be heading towards the Park. Mr Frudd parked a tractor across the Park gates and stayed there until it had been confirmed that the travellers had moved on. He missed his evening meal. No payment was made as Mr Frudd was told that it was part of the job. 31.8. On 4 April 2010, Mrs Frudd was called by a security guard at 8.00pm to give first aid to a child who had hurt himself.[32]There was one occasion of the claimants being paid for time spent responding to an incident prior to 10.00pm. This happened on 19 May 2013. The claimants were paid an emergency call-out payment. This was, however, on a day when the claimants were not on call.[33]After 10.00pm, the claimants were paid for emergency call-outs whilst on call. During the last five years of their employment, Mrs Frudd was paid for 18 callouts and Mr Frudd for 29 call-outs. Some of these payments reflect the claimants both having attended the same incident. The parties have different perceptions of why it was that both claimants were paid for one call-out. It is Mrs Frudd’s evidence that both of them were required to attend. Mr Challis took the view that it would be sufficient for one of the claimants to attend, but that they both deserved a call-out payment if they were disturbed during the night because it would affect both of their sleep. I find both perceptions to be genuine. There may well have been incidents where the claimants thought it better that both of them should attend. I am also satisfied, however, that at no stage were the claimants told that two of them would have to attend any call-out at once.[34]It is clear from the above figures that night time call-outs were comparatively rare. They average out at less than one every two months.[35]One of the most common causes of an evening or night time call-out was that a caravan owner or hirer could not get the electricity supply to work. This was usually capable of being rectified by either Mr or Mrs Frudd or indeed a security guard. They would attend at the caravan and see if the circuit breaker had tripped. If it had not, the relevant member of staff would go to the nearest substation and see if they could switch the electricity back on there. If neither of those two relatively simply methods worked, Mr Frudd would attempt a more complicated repair or, alternatively, a contractor would be called out in the morning.[36]Sometimes, either before or after 10.00pm, a customer would request a replacement gas bottle. There were procedures in place designed to prevent this happening. Each caravan owner was advised to keep two gas bottles so that they would have a spare if the first ran out. In practice, because of the cost of the bottles, the caravan owners would only use one bottle at a time, meaning that Mr Frudd would be called out to replace the bottle out of hours. This was a task that only the Warden could do.[37]Emergency call-outs after 10.00pm ought to be recorded on a form which would then be processed by Mrs Walsh. Sometimes, however, the Warden or Receptionist forgot to complete the form. If Mrs Walsh found out the form had been missed but happened to know that the call-out had taken place, she would accept a form filled out by somebody else on the on call staff member’s behalf.[38]The respondent engaged security guards to assist with various aspects of the running of the Park. Security guards worked at the Park during Easter school holidays, the May half-term school holiday, the school summer holidays, and October half-term. In addition, during the open season, they also worked on Friday and Saturday nights. Their hours were usually 8.00pm to 3.00am. Typically there would be one guard on the door of the licensed club and another guard, known as Stephen, responsible for the rest of the Park. He would carry out the evening check and be visible to visitors arriving at reception.[39]Whilst on duty, the security guard would take the alarm pager that would otherwise have been held by the on call members of staff. From 2013, the security guard also started taking the mobile phone. At 3.00am, at the end of his shift, the security guard would leave the pager and mobile phone at reception. I accept Mr Frudd’s evidence that he was concerned that there was a gap in cover between 3.00am and 8.00am when the morning shift started. There was nobody at reception to answer the phone. Visitors would, however, still be able to find the caravan where the on call team were sleeping. On Saturday nights Mr Frudd took to sleeping on the sofa in his caravan. I do not accept his evidence that he stayed awake watching reception out of his caravan window. This particular factual allegation is not in his witness statement.[40]Very occasionally on a night when there was a security guard on duty the claimants were called out after 3.00pm. This happened once in 2012 and once in 2013. Also very occasionally, the claimants would be first to respond to an incident and would ask the security guard for help. The only example given by them was a disturbance that took place close to the claimants’ caravan. I would have expected them in any event to have investigated that disturbance and have called security if necessary. Any attentive neighbour would have done the same.[41]In 2014 Mrs Frudd’s sister very sadly died. She was given paid time off to deal with the bereavement. This was specifically agreed by her manager. It shed no light on what was required of her at other times.[42]On 4 November 2014 Steve, the security guard, was called out. In turn he called Mr Frudd who attended to the incident.[43]On 7 November 2014, at a Head Office Receptionist’s meeting, one of the managers present made the comment, “on call is part of the job”. This was followed by the remark, “anyone not pulling their weight are gone”. Mr Ward relayed these comments to the staff at the Broadwater Park brew room.[44]The requirement to be on call had a marked effect on the claimants’ leisure time in the evenings. Whilst they could make meals for themselves and enjoy a meal together in the caravan, they rarely invited guests for fear of disruption. Mrs Frudd would have liked to babysit her grandchildren but did not do so whilst on call, in case the claimants were both called out and had to leave the children alone in the caravan.[45]There is a dispute about whether the claimants or either of them were permitted to leave the perimeter of the Park whilst on call. I accept that, on one or more occasions, Mr Ward saw one or both of the claimants leaving the Park in their car. This happened on a night when the claimants would ordinarily have been on call. What I do not know is whether there had been any shift-swapping arrangement between the claimants and the Linekers on those occasions. Overall I accept the claimant's evidence that, whilst on call, they both stayed within the confines of the Park unless they had specific permission to leave.[46]It was practically possible for the claimants to leave the Park and travel to Broadwater Village, Fleetwood or Cleveleys and remain contactable both via the mobile phone and the pager. I also accept, however, that this is not something that they actually did. My finding of fact goes a little further. I am persuaded that the claimants were obliged to ensure that, whilst on call, at least one of them was physically within the Park boundary. This is consistent with the ET3 responses initially presented by the respondent. It also reflects the evidence of Mrs Challis. Moreover, it is consistent with the reality on the ground. It would make sense for there to be a person physically present within the Park to be able to respond promptly to any calls on the telephone or any direct approaches to the caravan. Only one of them would need to be there. Many of the call-outs would involve a task that either of them could do on their own. If, exceptionally, the nature of the task was such that they both had to do it together, or only one of them was capable of doing it (such as changing gas bottles or using the reception computer system), it would be relatively straightforward for one of the claimants to contact the other using their private mobile telephones.[47]Many of the jobs that the claimants did whilst on call were capable of being down by either claimant on their own. These included: 47.1. Resetting the circuit breaker at the caravan or substation; 47.2. Responding to noise on site, children’s horseplay or other unruly behaviour; 47.3. Responding to an alarm call as described; 47.4. Issuing keys to sublet visitors who had the required form.[48]There were other activities which were not interchangeable and only one of the claimants could do. These included: 48.1. Checking details on the computer in order to admit undocumented visitors or in response to police enquiries; these tasks could only be done by the Receptionist. 48.2. Clearing drains and replacing gas bottles; only the Warden could carry out these tasks.[49]My finding is that these latter tasks were relatively rare. Most of the call-outs could be attended by either claimant on their own.[50]The claimants retired on 2 June 2015 and left the caravan.
Relevant Law
[51]Section 1(1) of the National Minimum Wage Act 1998 provides: “A person who qualifies for the national minimum wage shall be remunerated by his employer in respect of his work in any pay reference period at a rate which is not less than the national minimum wage.”[52]Section 2 of the 1998 Act conferred power to make regulations. The National Minimum Wage Regulations 1999 (“the 1999 Regulations”) were in force from the start of the claimants’ employment until 6 April 2015. From that date until the claimants’ employment terminated, the relevant regulations were the National Minimum Wage Regulations 2015 (NMWR). I accept the respondent’s analysis that the 1999 Regulations were not materially different from NMWR. It is sufficient, therefore, to set out the relevant provisions of NMWR without specifically citing its predecessor regulations.[53]Regulation 30 of NMWR provides, relevantly, with my emphasis: “Time work is work, other than salaried hours work, in respect of which a worker is entitled under their contract to be paid- (a) By reference to the time worked by the worker;….”[54]At the heart of the present dispute is the word, “work”. It is to be contrasted with the phrase, “hours when a worker is available” in the deeming provision in regulation 32 NMWR. As already indicated, the claimants do not attempt to bring themselves within this provision.[55]A distinction is to be drawn between cases where an employee is working merely by being present at the employer’s premises and those where the employee is merely available for work.[56]Whittlestone v. BJP Home Support Ltd [2014] ICR 275, EAT, concerned a sleepin carer. Holding that she was working merely by being present at the employer’s premises, Langstaff P observed: “[16] Thus the cases, as I shall show, note that where a person's presence at a place is part of their work the hours spent there irrespective of the level of activity are classed as time work. Difficult cases may arise where a worker is obliged to be present at a particular place. That presence may amount to their working. Conversely it may not. An example of the latter might typically be where a requirement is imposed upon an employee to live at or near a particular place but it is not necessary for that employee to spend designated hours there for the better performance of the contractual duties. This is unlikely to be time work: presence facilitates work but it is not itself work. Conversely where specific hours at a particular place are required, upon the pain of discipline if they are not spent at that place, and the worker is at the disposal of the employer during that period, it will normally constitute time work. … [57] The question of whether a person is working “is to be determined on a realistic appraisal of the circumstances in the light of the contract and the context in which it is made… [58] …she would have been disciplined if she had not been present throughout the period of time; she could not for instance slip out for a late night movie or for fish and chips. [59] …The fact that her physical services were not called upon during the night were on the basis I have expressed irrelevant since her job was to be there…[57]The tribunal must endeavour to ascertain the true agreement between the parties. This must be gleaned from all the surrounding circumstances. It open to a tribunal to find that the parties did not truly intend to be bound by a provision in a written agreement: Autoclenz v. Belcher [2011] UKSC 41.[58]Substance is more important than form. Labels such as “on call” are unlikely therefore to be of assistance.[59]In the appeal from which this case is remitted ([2017] ICR 1186), Simler P made clear that the critical question is whether “time work” included those hours where the claimants were present and required to be present during what was described as “the night shift” (that, is the time on call). The question at issue is factsensitive and demands a multi-factorial analysis. No single factor is determinative and the weight each factor carries will vary according to the facts of a particular case. Amongst the factors that are potentially relevant are:(i) The employer's particular purpose in engaging the worker may be relevant to the extent that it informs what the worker might be expected or required to do: for example, if the employer is subject to a regulatory or contractual requirement to have someone present during the particular period the worker is engaged to be present, that might indicate whether and the extent to which the worker is working by simply being present.(ii) The extent to which the worker's activities are restricted by the requirement to be present and at the disposal of the employer may be relevant. This may include considering the extent to which the worker is required to remain on the premises throughout the shift on pain of discipline if he or she slips away to do something else.(iii) The degree of responsibility undertaken by the worker may be relevant: see Wray v J W Lees & Co (Brewers) Ltd at [13] where the EAT distinguished between the limited degree of responsibility in sleeping in at the premises to call out the emergency services in case of a break-in or a fire on the one hand, and a night sleeper in a home for the disabled where a heavier personal responsibility is placed on the worker in relation to duties that might have to be performed during the night.(iv) The immediacy of the requirement to provide services if something untoward occurs or an emergency arises may also be relevant. In this regard, it may be relevant to determine whether the worker is the person who decides whether to intervene and then intervenes when necessary, or whether the worker is woken as and when needed by another worker with immediate responsibility for intervening.[60]One question that has arisen in this particular case is the relevance of the frequency or otherwise of the claimants’ call-outs. I interpret Whittlestone as saying that if a person is working merely by being present, the fact that they are not called upon to perform any particular activities is irrelevant. There may indeed be cases where a person is working even if they are never disturbed. But I do not understand Langstaff P to be saying that the frequency of activity is completely irrelevant to the question of whether their presence amounts to work. Frequency of activity will affect the multi-factorial analysis prescribed by Simler P. There are cases where the frequency of disturbances may help to determine what the employer’s purpose was in requiring the employee to be at the premises (Factor (i)). Take, for example, a bar manager who is required to live above a pub. For convenience of pronouns I imagine him to be a man. If he is required to sleep at home in the expectation that he will be regularly beset by bar staff asking for help between 10am and 1am, his mere presence at home between requests is likely to be work, even if he is at home, because that is the purpose of requiring him to be there. If, on the other hand, the manager is required to sleep at home, but both the manager and employer know that he will rarely be disturbed, it is more likely that the main purpose of his being there is because that is where he would sleep anyway: the occasional disturbance is merely incidental. Factor (ii) is also engaged. If disturbances are rare, the impact of being present at the employer’s premises will have a lesser restriction on the employee’s leisure. They are much more likely to be able to “switch off” between activities. Conversely, having to be on the alert to deal with regular queries is in itself a restriction of the employee’s free time.
Conclusions
[61]Before embarking upon the multi-factorial analysis required by the Employment Appeal Tribunal, I should briefly explain why I consider it important to break down that analysis into different periods of time. The question of whether the claimants were working by being on call is a highly fact-sensitive one. Where there are different circumstances prevailing at different times which would significantly impact on the multi-factorial analysis, it seems to me necessary to examine each period of time separately. This is so even if there were some factors in common to all periods of time.[62]In my view it is important to distinguish between periods of time on call before and after 10.00pm. I have a number of reasons for taking this approach: 62.1. Between the end of their shift and 10.00pm, the claimants were not paid for being disturbed. Dealing with customer enquiries and requests for assistance during this period was a contractual obligation. It was considered by Wardens, Receptionists and Managers alike to be part of the job. 62.2. After 10.00pm, the contract provided that the claimants would be paid for emergency call-outs. Whenever the claimants were disturbed, the call-out was treated by the respondent as an emergency for payment purposes, regardless of how urgent the call-out had actually been. The day-to-day reality matched this expectation. Call-outs after 10.00pm occurred, on average, no more than once every couple of months. 62.3. In my view it is inherently more likely that the claimants would be regularly disturbed during the evening than during the night. These were the hours when owners, hirers and visitors would be most likely to be awake and requiring assistance. 62.4. Visitors requiring keys would generally arrive between 6.00pm and 9.00pm. They were not entitled to a key after 11.00pm. 62.5. I accept the claimants’ evidence in general that their busiest time on call was between the hours of 5.00pm and 8.00pm.[63]I also thought it important to distinguish between the open and closed seasons. During the closed season, the respondent did not envisage that the claimants would be disturbed after 4.30pm except in an emergency. Again, during the closed season they were very rarely disturbed after this time.[64]It also seemed to me that circumstances were materially different and the obligations of the claimants whilst on call were significantly changed, depending on whether or not there was a security guard on site. In particular, the presence or absence of a security guard affected the immediacy with which they were expected to respond to call-outs. The security guard would almost always be the first line of response whilst on duty. The only exception I could find was one where I would have expected the claimants to have reacted as concerned neighbours in any event. Occasionally the security guards would seek secondary assistance from the claimants, but these occasions were rare.[65]By contrast, I did not think it necessary or appropriate to distinguish between Mr and Mrs Frudd when conducting the multi-factorial analysis. Here are my reasons: 65.1. The contract of employment created joint rights and obligations for both claimants. Each claimant was required to ensure that the other claimant fulfilled their obligations. This meant that, if one claimant was at work, the other could not truly be off duty. They were each obliged to ensure that the other was fulfilling their on call requirements. 65.2. In her clear and attractive submissions, Ms Del Priore tried to persuade me that the contract did not reflect the true intentions of the parties. I disagreed. Mrs Challis’ clear evidence was that she believed that both claimants were required to ensure that at least one of them was present on the premises whilst on call. That is a clear example of joint responsibility. It also reflects the reality. One only has to imagine what would have happened had Mr or Mrs Frudd seriously breached the terms of the contract. The respondent would have been entitled to dismiss that claimant, who could then be required to leave the caravan. That would have left the other claimant living in the caravan by him or herself. The respondent would not have been able to recruit a Warden or Receptionist to live in the caravan with the remaining claimant. 65.3. In practice, most situations that would arise on call were capable of being handled by either claimant on their own. Exceptions could be dealt with by the claimants ensuring between them that each was contactable by the other.[66]I start, therefore, by examining the times during the open season during the evenings up to 10.00pm when there was no security guard on duty. I address each of the factors in turn: 66.1. The respondent’s purpose in engaging the Warden/Receptionist team was to fulfil an important promise to caravan hirers that the Warden on call would help them round the clock with any queries. In my view, it is unnecessary to reach a conclusion as to whether that promise was legally binding. It was an important element of customer service. The Warden/Receptionist team was also engaged so that the Park could admit visitors and issue them with keys up to 11.00pm. The respondent could not seriously have expected visitors to be turned away if they arrived in the evening. In practice, almost all visitors arrived before 10.00pm. Another purpose of having the Warden/Receptionist team on call was to respond to alarm calls which usually occurred while residents were awake. Again, the respondent had sold alarms on a representation that if the alarm was triggered the pager would sound immediately and the park security team would respond. I have already recorded my view that this implied that there would be a quick response. Whether or not this representation was legally binding is not determinative. It would have been embarrassing to say the least if the alarm had sounded and the respondent had not ensured a call-out within a reasonable time. 66.2. There was a significant restriction on the claimants’ leisure activities during the evenings whilst on call. The absence of any disciplinary action does not weigh heavily in this case. There is no evidence that any of the Warden/Receptionist teams both left the Park whilst on call. The obligation to ensure that at least one of the claimants was physically present on site was a restriction for both of them. They could not go out together. Occasions when specific permission was given (for example, while the claimant’s mother was ill) do not alter the analysis. The mere fact of permission having been sought and granted tends to suggest that the regime was different at other times. 66.3. The claimants had a significant degree of personal responsibility. When called out, they would be expected to deal with a variety of situations themselves and not simply call the emergency services or other providers of assistance. 66.4. I am satisfied that during the evenings the claimants were the first line of response whilst on call.[67]Having examined the factors, I am satisfied that during these periods the claimants, and each of them, were employed on time work simply by being required to be on call, by being physically present at the Park, and by being jointly responsible for ensuring that at least one of them was present. They were not merely waiting to work, they were working.[68]I now turn to on call periods after 10.00pm. My view is that these periods did not count as time work. The multifactorial analysis points away from time work after 10.00pm and in both seasons, whether or not there was a security guard on duty. During the closed season, and at times when a security guard was working, it is harder still to argue that the claimants were working by being on call. I have taken account of the various factors as follows: 68.1. The purpose of having a Warden and Receptionist on call during the night (as opposed to during the evening) was so that they could respond to vary occasional alarms and requests for assistance. Whether or not they were “emergencies” in any technical sense is neither here nor there. All parties knew that the claimants would be very rarely disturbed after 10.00pm. By being on call, the claimants would help the respondent to fulfil its promise to hire customers that a Warden would be on call to help them at any hour of the night with any queries. As in the early evening, the claimants by being on call were the respondent’s means of ensuring that there would be a prompt response to alarm pagers; but it was well understood that the need for this to be done would rarely arise. 68.2. At night, the claimants were not free to leave the Park together and thereby suffered some restriction in their lifestyle, but this was at a time when they would usually be sleeping. There would only be any real interference with their activities if they wanted to go away together and stay the night outside the Park. Their lack of opportunity to do this is not something they have complained about in their witness statements. Even if it did intrude on their lives, the degree of intrusion would have been almost the same even if their only obligation was to remain contactable. If they wanted to stay the night together outside a seven mile radius from the Park, they would not be able to respond to the alarm pager, nor would they be able to return to the Park if a customer telephoned them. The claimants have not sought to argue that they were working merely by having to remain contactable. 68.3. The degree of responsibility that the claimants held at night was a little less than it was during the evening. If the claimants were disturbed during the night, they would need to make an assessment of whether they should respond to the incident straightaway or ask the caller to wait until the morning. Any reasonable person trying to make sense of the claimant's obligations would understand that the claimants would be entitled to take into account the fact that the call was in the middle of the night when deciding whether or not to take immediate action. I also think it relevant, though not determinative, that the claimants were not expected to exercise their responsibility nearly as often at night as during the evening. 68.4. At night, as in the evening, the claimants were the first line of response unless a security guard was present.[69]Having looked at the factors separately, I have tried to step back and assess whether, after 10.00pm, the claimants were working or merely on standby to work. My view is that it was the latter.[70]I take the view that during the closed season the claimants did not do time work on call, either before or after 10.00pm. I have taken account of the restriction in the claimants’ activities: they could not go out together during the evenings as well as at night, but the evening call-outs were so rare that they would have been able to enjoy their evenings inside the Park with almost complete freedom. Provided at least one of them stayed within the confines of the Park, they would have noticed little difference between an evening on call and an evening on their day off. There were no hire customers to attend to, no evening visitors and very little else to disturb them.[71]I also find that the scales are tipped away from time work at all times when there was a security guard working at the Park. For the reasons I have already given, the presence of a security guard had a marked effect on the immediacy of the response required by the claimants whilst on call. This factor is sufficiently weighty as to mean that the claimants were not working merely by being present on the Park.[72]Consequential Findings[73]My conclusions expressed up to this point ought to enable the parties to work out for themselves whether or not the claimants were paid the national Minimum Wage. It is clear from Mrs Frudd’s witness statement that she is aware of the principles on which the National Minimum Wage should be calculated. It may well be that no further hearing is necessary. The parties should attempt to reach an agreed calculation of what the claimants have been paid and what they ought to have been paid. If either party seeks a declaration that the claimants either were or were not paid the National Minimum Wage, there would not necessarily need to be another hearing to enable a judgment to that effect to be given, provided that the parties agree. Likewise, it may well that the parties can reach an agreement on the extent of any underpayment and ask the Tribunal to award damages in that amount based on the agreed figures.[74]In case the parties are unable to reach agreement, a further hearing has been listed to take place on 16 April 2018. There is a pending application to postpone and re-list that hearing which the Tribunal will deal with in due course.[1]In this judgment, “the Judgment” means the judgment sent to the parties on 2 February 2018, the “Reasons” means the written reasons accompanying the reserved judgment and “the reconsideration application” means the claimants’ application for reconsideration dated 15 February 2018.[2]The following parts of the Judgment will be reconsidered at a hearing: 2.1. The dates of the open season contained in the definition section, paragraph (2); 2.2. Paragraphs2.1 and2.2 – the declaration that time work started at 5pm; 2.3. Paragraphs 2.1 and 2.2 – the declaration that time work ended at 8pm when one or more security guards were working at the Park. In this respect the tribunal will only reconsider the claim period prior to 2014 and will only reconsider the question of whether time work finished at 10pm rather than 8pm.[3]The remainder of the reconsideration application is refused. NOTICE OF RECONSIDERATION HEARING 1. There will be a reconsideration hearing on 17 April 2018. At the reconsideration hearing, the Judgment may be varied, but only to the extent indicated in this judgment and reasons. 2. The reconsideration hearing will take place immediately before the resumed final hearing. Once the reconsideration hearing is concluded, the tribunal will determine the question of whether, in the light of the reserved judgment and any variation to it, the claimants were paid the National Minimum Wage and, if not, what the extent of the underpayment was. 3. The overall time allocation for the hearing on 17 April 2018 remains one day.[1]The Judgment and Reasons were sent to the parties on 2 February 2018. In essence, the Judgment declared that the claimants were employed on time work for parts of their time on call, but not for others.[2]By e-mail dated 15 February 2018, the claimants applied for reconsideration of many aspects of the judgment. The broad thrust of their application was that all of their time on call should have counted as time work.[3]The application, whilst lengthy, is generally well-structured and there is no need for me to repeat its contents. Relevant law[4]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides that a tribunal may, on the application of a party, reconsider any judgment where it is necessary in the interests of justice to do so. Applications for reconsideration must be made in accordance with Rule 71.[5]Rule 72 requires that an employment judge must consider any application under Rule 71. If the judge considers that there is no reasonable prospect of the original decision being varied or revoked, the application must be refused.[6]The old Employment Tribunal Rules of Procedure 2004 required that judgments could “reviewed”, but only on one of a prescribed list of grounds. One of those grounds was that “new evidence [had become] available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at that time.” This proviso reflected the well-known principle in civil litigation deriving from Ladd v. Marshall [1954] 3 All ER 745, CA.[7]The current 2013 Employment Tribunal Rules of Procedure replaced the old list of grounds with a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. Nevertheless, the “interests of justice” test must, in my view, incorporate a strong public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it.[8]Although neither party has drawn the case to my attention, I have taken it upon myself to read the recently-reported decision of the Court of Justice of the European Union in Ville de Nivelles v. Matzak C-518/15, CJEU. It is a case decided under the Working Time Directive 2003/88. From that case I derive the following principles:8.1 Member States must give “working time” in Article 2 of the Directive an interpretation that is no more restrictive than the CJEU’s definition.8.2 Article 2 must be interpreted as meaning that stand-by time which a worker spends at home with the duty to respond to calls from his employer within 8 minutes, very significantly restricting the opportunities for other activities, must be regarded as ‘working time’.8.3 Member States are not obliged to adopt the Article 2 definition of “working time” as a way of determining entitlement to remuneration for time spent on standby.[9]In my view, Matzak would not cause me to alter my decision. I am not aware of anything in NMWR, or the domestic case law interpreting it, that says that “working time” for the purposes of the Directive should be regarded as “time work” for the purposes of NMWR. As I see it, the domestic law remains that as stated by the Employment Appeal Tribunal in this case at [2017] ICR 1186. If a party disagrees, their remedy is to appeal. Conclusions on preliminary consideration[10]I have given the application preliminary consideration under rule 72. For ease of reference I attempt to identify each argument with a subject heading which, I hope, not unfairly, identifies each argument that the claimants raise. The headings merely provide a convenient label and should not be taken to be an oversimplification of that argument. Paragraphs 1 and 2 – dates of the open season[11]In my view it is reasonably arguable that I overlooked relevant evidence in relation to the dates of the open season. If Mr Frudd’s witness statement is taken into account, the open season may in fact have been longer than I found it to be. This point can be reconsidered at the next hearing. Paragraph 3 – hours of time work[12]I did not find this argument particularly easy to understand. There seem to be a number of distinct arguments being put forward under this heading. I set them out here, together with my reasons for thinking that they would not give rise to any reasonable prospect of the Judgment being varied or revoked.12.1 Given that the claimants were time workers, and given that their contract did not provide a means of calculating pay for work done after 10pm by reference to the time spent working, the whole period after 10pm should be considered as time work. This argument was not raised either in our initial discussion of the issues or in closing arguments. If I understand it correctly, and it is right, there would be no need for the multi-factorial analysis demanded by the Employment Appeal Tribunal. Indeed, it would be hard to see why the case should have been remitted to the employment tribunal at all: it would have been sufficient for Simler P to say that the claimants were not employed on output work or unmeasured work, and because emergency call-out payments were not calculated by reference to the time actually spent working, the time after 10pm must be time work. In my view, the better analysis is that call-out payments are based on a notional period of a few minutes’ working time, based on the assumption that emergency call-outs would not be time-consuming.12.2 The judgment leaves a gap between the end of the claimants’ shift (sometimes 4.30pm) and the start of on-call time work of 5pm. If I have properly understood this point, it is arguable. There is some evidence that the claimants’ regular shifts did not always finish at 5pm and it is arguable that I overlooked it. I will reconsider this point at the next hearing.12.3 The possible presence of other staff would make no difference. I explained (Reasons para 71) why I thought it did make a difference. Paragraph 4 - Christmas[13]Paragraph 26 of the Reasons dealt with Christmas. It was part of the closed season when, on my findings, there was very little, if anything, to do. The Park was completely closed and residents were not allowed to stay in their caravans. Being on-call over Christmas meant very little more than being at home. Paragraph 5 – Missing evidence[14]I do not see any reason why I should follow a different approach from Ladd v. Marshall in this case.[15]If this were a civil claim, the Ladd v. Marshall criteria would not be satisfied. Making allowances for the fact that the claimants were representing themselves, they could reasonably have been expected to draw the document in the bundle to the tribunal’s attention at some point during the hearing. Evidence and submissions lasted for 3 days. Even if Mrs Frudd could not lay her hands on the document during her questioning of Mr Ward on Day 1, she could have pointed it out to me on Days 2 or 3.[16]In any event, the document the claimants refer to would not cause my findings to be altered. The reconsideration application does not attach the document, or signpost where it can be found in the bundle, but from the claimant’s description, it would appear to be consistent with my existing findings of fact. The claimants appear to be describing an incident in which Mrs Frudd obtained permission to leave the Park, in circumstances where Mr Frudd would also need to leave the Park in order to collect her. In other words, the missing document would have tended to show that the claimants needed permission if they both wanted to be away from the Park at the same time. I found (Reasons paragraph 46) the claimants were jointly required to ensure that at least one of them was on the Park whilst on call and (Reasons 66.2) that the occasions on which permission was specifically granted to leave the Park did not alter the analysis. The missing document supports that conclusion. There is no reasonable prospect of its existence causing me to vary or revoke the Judgment. Paragraph 6 - Ramtech[17]I found that the respondent cancelled its subscription to Ramtech in December 2014. It may have been that there was some run-off period after December 2014 during which the alarms were pre-paid. There was a clash of evidence on this point. But the precise date when the respondent stopped using the Ramtech alarms is of little importance. I did not distinguish between the periods before and after December 2014. Paragraph 7 – Frequency of paid call-outs[18]The claimants have reminded me of paragraphs 12 and 13 of British Nursing Association v. Inland Revenue [2002] EWCA Civ 494 (“BNA”). They do not cause me to alter my self-direction on the law at Reasons paragraph 60. I do not understand Buxton LJ to have been saying that the frequency or otherwise of disturbance whilst on call is always irrelevant. The existence of slack periods at night was irrelevant in the context that particular case. In BNA, home workers were required to be on standby to take telephone calls as part of a 24-hour telephone helpline service. The home workers were providing the same service as the employer was providing at its premises during the daytime. Nighttime calls were relatively infrequent, but it did not alter the purpose of requiring the workers to be at home: they were there to operate the 24-hour facility. In my view this scenario is different in principle from one in which the home workers are only required to do anything once every couple of months.[19]If the claimants disagree with my view of the law, their remedy is to appeal to the Employment Appeal Tribunal. Paragraph 8(i) – Employer’s purpose[20]I took points 8(i)(a) and (c) into account in reaching my decision: see Reasons paras 66.1 and 68.1.[21]It is arguable that I overlooked point 8(i)(b). It may be that, prior to 2014, the claimants kept the mobile phone and pager in the evening when the security guards arrived. If that is right, it might tend to suggest that the claimants were the first line of response despite there being security guards at the Park. It might cause me to find that all open season working time continued up to 10pm prior to 2014. At the next hearing I will hear arguments as to whether or not that part of the Judgment should be varied. There is no reasonable prospect of my finding that working time continued past 10pm. Paragraph 8(ii) – restriction of activities[22]I made detailed findings about the circumstances in which the claimants were permitted to the leave the Park. The claimants’ point (a) is addressed at paragraph 66.2 of the Reasons: the absence of disciplinary proceedings is not informative because in practice the claimants did not both leave the Park together without specific permission. Points (b) and (d) – I do not recall the evidence of what was said in the job interviews, but it is no different in principle from the finding I made at Reasons paragraph 23. Shift-swapping (Point (c)) is dealt with in Reasons paragraph 24.[23]I also made a number of findings that were also relevant to this factor: see, for example, Reasons paragraphs 44, 66.2 and 68.2. Simply re-emphasising points (a) to (d) does not give the claimants any reasonable prospect of my varying or revoking the Judgment. Paragraph 8(iii) - responsibility[24]I explained (Reasons para 68.3) why I thought that the claimants had a little less responsibility during the night time than during the evening. The extent of responsibility was only one of a number of factors. As for the claimants’ point (c), the claimants did not draw my attention to paragraph 1.1 of the Licence Conditions during the hearing. Paragraph 8(iv) - immediacy[25]I considered the immediacy or otherwise of the claimants’ requirement to attend to call-outs. See, in particular, Reasons paragraphs 68.4 and 71.[26]There is no reasonable prospect of my judgment about time work after 10pm being varied or revoked. Paragraph 9 – regulation 32[27]It is far too late for the claimants to try and rely on regulation 32 of NMWR. At the start of the hearing I specifically explained to Mrs Frudd that there might be two potential ways of establishing time work. One was under regulation 30 – the requirement to be present at the Park itself amounted to work. The other potential route was through being awake for the purposes of working within the meaning of regulation 32. When I explained this, Mrs Frudd was quite clear: she was not seeking to rely on regulation 32. This was the concession that I set out at paragraph 5 of the Reasons. It is also consistent with the fact that the claimants did not try to rely on regulation 32 in their final submissions and their witness statements did not seek to address the question of being awake for the purposes of working. There would be a significant disadvantage to the respondent if I were to re-open the issue of whether there was any regulation 32 time work. All the witnesses have given evidence. The argument would also face a difficulty on its merits. As the claimants recognise in their reconsideration application, regulation 32 only applies if the worker is not at home. The reconsideration application concedes that the claimants were “at home”. This concession is realistic: Mr Frudd in both his witness statement and his oral evidence used the word “home” to describe the caravan in which the claimants lived. The claimants lived in the caravan and did not live anywhere else. As for the argument now raised at paragraph 9(c), regulation 32 does not distinguish between workers who are required to be at home and workers who choose to be there. Disposal[28]I have identified those parts of the reconsideration application that have a reasonable prospect of resulting in the judgment being varied or revoked. They will be reconsidered at the hearing currently listed for 17 April 2018. As part of their preparation for that hearing, the parties will need to anticipate the possible findings I might make on reconsideration, including variation of the start times of on-call time-work, re-definition of the open season in line with Mr Frudd’s witness statement, and variation of the finish times on days prior to 2014, when security guards were present at the site. That way, there should not need to be much time spent in re-calculating the claimants’ hourly pay in the light of my reconsideration findings.[32]The Claimants however certainly made no concession about the hour in the early morning. It was their case that they were required to be not only available for work but actually working during that hour. To my mind reasoning was required to cover this hour once the EJ had decided, as in my view he correctly did, that the night time period was to be treated differently. It was an hour when the caravan site was open. The contract certainly did not envisage that this was an hour when the claimants were only going to be disturbed during an emergency call-out: the call-out charge ceased to apply at 7.00am. The claimants were effectively in charge of a substantial caravan park at a time when one might expect disturbances other than emergency call-outs.[33]Since there is no reasoning in respect of this period, the appeal will be allowed and the matter remitted to the ET for reconsideration…” 6. On remittal from the EAT, the case was considered by Regional Employment Judge Parkin. The mechanism by which the Regional Judge gave effect to the EAT’s judgment was to list the claims for a reconsideration hearing before me. That is the hearing with which I am now concerned. Relevant law 7. It appears to me that the relevant legal principle is already embodied in the question remitted to me. I remind myself that under the National Minimum Wage Act 1998, section 28(2), tribunals considering complaints of unlawful deduction from wages are required to presume that a worker was not paid the national minimum wage unless the contrary is proved. No further oral evidence 8. At the start of the hearing the parties disagreed about the scope of the evidence that I should consider. The respondent’s primary case was that I should review the evidence that I had considered at the 3-day hearing and determine, in the light of that evidence, that the claimants had not made out their case that they were employed on time work during the morning hour. The claimants agreed with that approach, although their position, naturally, was that the evidence pointed towards the opposite conclusion. Had that been the full extent of the respondent’s argument, the parties would have been in complete agreement as to how I should proceed. The dispute arose when the respondent attempted to advance an alternative case, in the event that I found that the existing evidence supported the claimant’s case. In that event, the respondent indicated that it would wish to call witnesses to give oral evidence. Such evidence, would, the respondent submitted, demonstrate that the claimants were not doing time work during that morning hour. 9. After having heard the parties’ arguments, I decided to refuse the respondent’s request to rely on oral evidence. I gave my reasons orally at the time. Written reasons for that decision will not be provided unless a party makes a request in writing within 14 days of these reasons being sent to the parties. 10. My review of the evidence was therefore confined to the documents, witness statements and answers to questions that had been provided during the threeday hearing. Facts Primary facts and inferences 11. It was conceded by the claimants that there was no direct evidence that any particular task had been done during the morning hour. It was, however, their case that there were facts from which I could draw an inference that they were regularly doing work at that time. The respondent submitted that such an inference was not possible. 12. Inferences can only be drawn from facts. It is therefore important for me to set out the facts I took into account in deciding whether or not an inference was appropriate. Original findings 13. I looked back at my original findings of fact recorded in the February 2018 Reasons. There is no need for me to repeat them here, but I revisit some of them in my conclusions. Further findings 14. I also considered all the evidence that had been given and made the following further findings: 14.1. The Park reception opened at 8.00am. 14.2. The task of re-setting the circuit breaker (February 2018 Reasons paragraph 47.1) arose when a caravan’s electrical circuits had been overloaded. This would happen when the caravan occupant attempted to use multiple power-hungry devices, such as a toaster, kettle and hairdryer, all at the same time. 14.3. Gas bottles were sold in reception. Whilst there were some instances of Mr Frudd being called out in the evening or even at night to replace a gas bottle, I would be very surprised if that happened during the morning hour. People whose gas had run out between 7.00am and 8.00am would know that they had a maximum of an hour (and probably less) to wait before being able to buy a bottle from reception. I do not think that they would have bothered to disturb the duty Warden or Receptionist when the Park reception was about to open. 14.4. Records were not kept in relation to call-outs except at night, when those call-outs triggered an entitlement to payment. There is therefore nothing to document what if any work the claimants did during the evenings and mornings. 14.5. Some long-term residents used their caravan as their home on working days. There is no evidence about the proportion of caravans that were occupied for this purpose. In my view it is unlikely that the proportion would be high. Such working residents as there were would be likely to be awake and active during the morning hour. They would, however, have been selfreliant and would not need regular assistance (February 2018 Reasons paragraph 10). 14.6. Holidaymakers (whether visitors or owners) would be unlikely to be active before 8.00am. There is a possible exception, which relates to visitors on their final day. They would be required to vacate their caravan by 10.00am. Some of these visitors would be up and about before 8.00am. 14.7. One of Mrs Frudd’s tasks was to put welcome packs together for caravan purchasers. This task could have been done at any time and would not require any work to be done between 7.00am and 8.00am when reception was closed. 14.8. At today’s hearing Mrs Frudd very fairly conceded that she never had to issue keys to sublet visitors during the morning hour. 14.9. Mrs Frudd did not welcome visitors or show them the facilities during the morning hour. 14.10. I think it highly unlikely that Mrs Frudd ever showed a prospective purchaser round the site before 8.00am. It is just not the time when people would be out caravan-hunting. 14.11. The vast majority of the alarm calls to which the claimants responded were not in the morning hour. I found (February 2018 Reasons, paragraph 16) that by far the most common cause of an alarm call-out was the customer accidentally omitting to de-activate the alarm on arrival at their caravan. I find it highly unlikely that any customer would ever have returned to an alarmed caravan between 7.00am and 8.00am. 14.12. Mrs Frudd sometimes had to check details on the computer in response to police enquiries (February 2018 Reasons, paragraph 48.1). In my view it is unlikely that the police ever visited before 8.00am if the purpose of their visit was to check details. They would have waited for office hours to begin 14.13. Mr Frudd sometimes helped caravan occupants to light their fires. This could have been done at any time. 14.14. Mr Frudd had to challenge a resident who routinely broke the Park speed limit in his vehicle. There was no evidence about the time of day at which this had happened or when or how often Mr Frudd challenged the driver. 14.15. Mr Frudd on occasion had to deal with people who “turned up on the spur of the moment”. According to his witness statement, which I accept, these encounters would happen between 6.00pm and 9.00pm. 14.16. From time to time, children on site would engage in disruptive or unruly behaviour and Mr Frudd would intervene. On some occasions they would be kicking a ball against the club wall. In his oral evidence, Mr Frudd adopted the example of children on a “sugar rush”. I doubt very much that children would have either been playing ball games or have been on a sugar-induced high before 8.00am. 14.17. Mr Frudd once had to help a resident who had had his keys stolen. This was a call-out at night. 14.18. Mr Frudd had to help a child who was screaming. I do not know what time of day this occurred. 14.19. Whilst on-call, the claimants could not both go shopping at the same time. Their on-call work affected their ability to enjoy evening meals with family and friends. It did not affect their breakfast or their ability to enjoy the morning with overnight guests. Had on-call duties intruded into their lives in this way, I would have expected it to be specifically mentioned in the claimants’ witness statements along with the specific examples that they actually did give and which I found at February 2018 Reasons paragraph 44. Inferences of work during the morning hour15. I now return to the question of whether I can infer that the claimants did any work during the morning hour and, if so, how much.16. In order to decide whether or not such an inference was justified, I thought it helpful to divide the relevant facts into categories. 16.1. General indicators towards the claimants doing work during the morning hour; 16.2. General indicators away from working during the morning hour; 16.3. Identifiable tasks done in the morning hour; 16.4. Identifiable tasks done at other times; 16.5. Tasks that could have happened in the morning as well as at other times; and 16.6. Specific examples of the impact on the claimants’ leisure time and home life at particular times of the day.17. I ought to point out that, in my oral reasons, I labelled the categories slightly differently, to include a discussion of the evidence. For the purpose of these written reasons, however, I thought it important to keep a clear distinction between my findings of fact and the evidence I took into account. The re-labelled categories do not change my findings or change the facts that I took into account. General indicators of work during the morning hour18. Some of the general points in the claimants’ favour have already been summarised by His Honour Judge Richardson. Between 7am and 8am, the Park was open and the claimants were effectively responsible for running it. Disturbances might be expected to occur more frequently in the morning hour than at night.19. Another factor pointing towards work during the morning hour is the fact that, under the contract, there was no entitlement to payment for call-outs after 7.00am. For contractual purposes, at least, the morning hour was treated in the same way as on-call time in the evening. Having found that the period between 5.00pm and 10.00pm was time work, I would need a logical basis for distinguishing the morning hour from the evening time, when contractually they were treated in the same way. General indicators away from work during the morning hour20. A number of general factors diminish the importance of the claimants being responsible for the site during the morning hour: 20.1. This was a quiet site. Caravans were mostly either empty or occupied by their owners who were generally self-reliant. 20.2. Holidaymakers would not usually be active before 8.00am. Even if they were awake but they are unlikely to be doing the sorts of things that would require intervention from a warden or a receptionist. 20.3. The reception was closed until 8.00am. 20.4. The busiest time on call was between 5.00pm and 8.00pm (February 2018 Reasons paragraph 31).21. Another general factor is the lack of any specific example of any work that was positively identifiable as having been done during the morning hour. I deal with this under the next heading. Identifiable tasks done in the morning hour22. The claimants accept that there are no specific examples of any work that they did in the morning hour. They argue, however, that this factor should not be given significant weight, for two reasons: 22.1. I ought to make allowances, as Judge Richardson did, for the fact that the claimants’ primary case was that they were employed on time work for the whole of the on-call period. They may not have realised the importance of breaking the on-call period down into separate time slots and saying what work they did in each one. 22.2. It is also true that there were no records of tasks done whilst on-call except at night, when a call-out payment was triggered. It was easier for the claimants to remember specific examples of things that they did at night, because they had the records to jog their memories. It would therefore be unsafe to assume, merely from the relatively large number of examples of night-time tasks, that nothing was happening at other times.23. I acknowledge the need for care when drawing conclusions from the lack of examples. But in my view the claimants’ arguments are overstated. Dealing with them in turn: 23.1. Whilst the claimants may not have thought that the morning hour would be considered separately, they nevertheless had the whole of the on-call period to choose from when thinking of examples of work that they had done. There is no reason to think that they would have discarded examples from the morning hour (if they had thought of any) on the ground that they were in any way less relevant than examples of work done at other times whilst on call. Indeed, Mr Frudd specifically mentioned the morning check of the Park during the closed season (which, of course, would not count towards time work during the open season). 23.2. The lack of records did not stop the claimants from giving numerous examples of things that had happened in the evening, before call-out payments were available. Nor would it have prevented them from recalling tasks done in the morning if they had happened.24. Even making allowances for the claimants’ arguments, I still think the absence of any specific instances of identifiable work in the morning hour is a telling indicator that very little work was actually going on at that time. Identifiable tasks done at other times25. Turning to the specific examples of on-call tasks that we do have, I have looked through them and found that most of them were not done during the morning hour. The examples that can be excluded from the morning hour include: 25.1. All the night-time call-outs; 25.2. Changing gas bottles; 25.3. Greeting “spur of the moment” visitors; 25.4. Mrs Frudd putting welcome packs together; 25.5. Mrs Frudd showing prospective purchasers around the site; 25.6. Mrs Frudd welcoming visitors and showing them the facilities; 25.7. Mrs Frudd welcoming late arrivals; 25.8. Mrs Frudd giving keys to sublet visitors; 25.9. Mrs Frudd responding to police enquiries; 25.10. Mr Frudd’s evening check of the Park; 25.11. Mr Frudd dealing with the behaviour of “sugar rush” children and preventing ball games against the club wall; 25.12. The vast majority of the alarm calls to which the claimants responded; 25.13. The traveller incident (February 2018 Reasons, paragraph 31.7) 25.14. The first-aid incident (February 2018 Reasons, paragraph 31.8).26. Needless to say, just because the claimants were working in the evening and at night, it does not follow that they were not also working in the morning. But where there is a finite list of examples of work that they did during the on-call period as a whole, the more tasks from the list that are identified as only having been done in the daytime, evening or night, the fewer can have added to any workload in the morning hour. Tasks that could have happened in the morning as well as at other times27. Some of the specific on-call tasks could have been done during the morning hour as well as at other times. These include: 27.1. Re-setting the circuit breaker. It is conceivable that, of the small population of working residents, some might be wanting to use power-hungry devices such as toasters during the morning hour. If they lived in the caravan to work, I would have thought they would tend to know the limits of the electrical system, and would know how to re-set the circuit breaker if they tripped it. Departing visitors might be less self-reliant, but they would be in a small minority (February 2018 Reasons, paragraph 10). I cannot think that they would have needed their circuit breaker to be re-set except on rare occasions. 27.2. Challenging the speeding driver. It is unclear how many times Mr Frudd had to speak to the speeding driver, but I would be surprised if there was a significant number of occasions before 8.00am. Very few people would have been outside their caravans and put in danger. 27.3. Lighting fires and unblocking drains. Unblocking drains was relatively rare (see February 2018 Reasons paragraph 49). These tasks would only tend to arise in the morning hour for working residents and for visitors on departure day (see above). 27.4. Dealing with a child screaming. This is a one-off occurrence. It might have happened in the morning hour, but there is nothing positively to suggest that it did. Children unfortunately can scream at any time of the day or night. 27.5. Responding to deliberate alarm calls. This could have happened in the morning hour, but was not, as I have found, the reason for the vast majority of alarm calls, which were caused by customers returning to their caravans. Impact on leisure time28. The claimants’ on-call duties interfered with the claimants’ leisure activities, but almost always in the evening. There could conceivably have been some early morning shopping trips foregone, or a missed opportunity to supervise grandchildren before 8.00am, but they had no difficulty in enjoying breakfast or interference with early morning routines at home. This adds to the picture of the claimants having regular work to do in the evening, but very little to do in the morning hour. Conclusions29. Having taken into account all the factors, I cannot infer that the claimants were doing any significant amounts of work during the morning hour. Indeed, I am able to find positively that for the vast majority of the time they were not doing any work and the occasions on which they were called upon to work must have been rare. This is in stark contrast to the evenings, where the claimants were routinely kept busy doing the various tasks I have listed.30. The very clear difference in workload between the morning hour and the evening does, in my view, provide a logical basis for distinguishing between those two periods, even if the contract treated them in the same way.31. I now take a step back and ask myself the question specifically remitted to me. During the morning hour, were the claimants working, within the ordinary meaning of that word? I do not think that they were, except on rare occasions when called out to a specific task. In reality, during the morning hour, the claimants were available for work, and on the Park together, but they were not working.32. I have considered whether or not the time that the claimants actually spent working on tasks would be of significance in determining whether the claimants were paid the National Minimum Wage or not. In my view, the occasions were, in all likelihood, so rare that they would not make any significant difference. 33. In my view, there is no reason to vary the consent judgment sent to the parties on 5 September 2018 and that judgment is affirmed. No further sums are due to the claimants.[1]My original reserved judgment in this case was sent to the parties on 2 February 2018. Following remittal from the Employment Appeal Tribunal, I conducted a further hearing on 10 May 2019. The purpose of the hearing was to determine whether the claimants had been doing time work between the hours of 7am and 8am (“the morning hour”). I decided that they had not. My decision was recorded in a written judgment sent to the parties on 20 May 2019, followed by written reasons sent to the parties on 5 July 2019. I refer to these documents respectively as the “May 2019 Judgment” and the “July 2019 Reasons”. The reconsideration application[2]By e-mail sent on 19 July 2019, the claimants applied for reconsideration of the judgment. In essence, the claimants’ contention is that they were doing time work during the morning hour and that I was wrong to find that they were not.[3]The application runs to just over 16 pages and makes many points. It would be disproportionate to identify every argument and deal with it separately. In broad outline: 3.1. At paragraphs 5 to 12, the application reminds me of my original reserved judgment. In particular, it reminded me of my rationale for distinguishing between the evening time and the night time. It lists the factors I took into account in deciding that evening times on call involved time work and night times did not. The claimants now argue that the factors pointing towards time work in the evening were all present in the morning hour, and the factors pointing away from time work at night were absent in the morning hour. By implication, the claimants appear to be arguing that the May 2019 Judgment was inconsistent with my original reserved judgment. 3.2. Paragraph 17 of the application, which spans 8 pages, contains a detailed critique of my further findings of fact contained in the July 2019 Reasons. I group the criticisms into their main themes: 3.2.1. The claimants contend that some of my further findings were inconsistent with evidence that had been given orally, in witness statements, or in documents in the bundle. 3.2.2. The claimants contend that, whilst Mrs Frudd made a concession about issuing customer keys, it was different from what was recorded in the July 2019 Reasons. 3.2.3. They argue that some of my findings are unsupported by the evidence. 3.2.4. Some arguments rely on evidence not previously given, but which if taken into account would alter my findings of fact. 3.3. Paragraphs 18 to 21 engage with the question of what inferences it was appropriate for me to draw from the facts I had found. This includes a recitation of the written and oral evidence and a further explanation as to why the claimants’ evidence did not specifically refer to any activities carried out during the morning hour. Relevant law[4]Rule 70 of the Employment Tribunal Rules of Procedure 2013 provides the tribunal with a general power to reconsider any judgment “where it is necessary in the interests of justice to do so”.[5]Rule 71 sets out the procedure for reconsideration applications.[6]By rule 72(1), “An Employment Judge shall consider any application made under rule 71. If the Judge considers that there is no reasonable prospect of the original decision being varied or revoked… the application shall be refused…”[7]The overriding objective of the 2013 Rules is to enable the tribunal to deal with cases fairly and justly. By rule 2, dealing with cases fairly and justly includes putting the parties on an equal footing, avoiding delay, saving expense, and dealing with cases in ways that are proportionate to the complexity and importance of the issues.[8]The current 2013 Rules replaced the old procedure for reviewing judgments. Under their statutory predecessor, the 2004 Rules, review applications could only be granted on one of a specified list of grounds. That list has been replaced by a single test: a judgment will be reconsidered where it is “necessary in the interests of justice to do so”. There is no specific provision for fresh evidence. Nor is there any express prohibition a party relying on evidence about which he knew or ought to have known before the judgment was given. Nevertheless, the “interests of justice” test must, in my view, incorporate a strong public interest in the finality of litigation, even if it is not as inflexible as the proviso in the 2004 Rules. Where a party could reasonably have been expected to rely on the evidence first time around, it would take a particularly good reason to give that party a fresh opportunity to rely on it.
Conclusions
[9]The claimants’ application is well argued and well structured, but I nevertheless consider that it has no reasonable prospect of causing me to vary or revoke the May 2019 Judgment.[10]I deal with the main themes of the application in turn. Inconsistency with the original reserved judgment[11]The claimants rely on the fact that the contract excluded call-out payments for the morning hour as well as in the evening. I expressly recognised this point in the July 2019 Reasons at paragraph 19. For this reason, I observed there, I would need to distinguish logically between the evening time and the morning hour.[12]It is true that the reconsideration application raises other factors, besides the contract, on which I relied in distinguishing between the evening and the night time. Examples are the fact that the claimants would not be expected to be asleep in the evening, the fact that they had personal responsibility for any queries that were raised at all times, and the fact that the claimants were required to ensure that at least one of them was on the Park in the evening. These were also true of the morning hour.[13]It does not follow, however, that the May 2019 Judgment is inconsistent with the original reserved judgment on these points. The existence of these common factors underlined the point, which I recognised, that there would need to be a logical distinction between the evening time and the morning time. These common factors did not undermine the logical basis for that distinction, which was that the claimants were busy in the evening, but had very little to do in the morning.[14]It is important to remember, as well, that, as the EAT found, the original reserved judgment did not address the morning hour at all. There was no analysis of which factors (present in the evening) were common to the morning hour and which were absent. This point is worth bearing in mind when considering the claimant’s argument at paragraphs 5 and 6 (cross-referred to paragraph 66.2 of the original reserved judgment). The original reserved judgment did not make any finding about the extent or otherwise of restriction on the claimants’ home life in the morning whilst on call. By contrast, the July 2019 Reasons did make such findings – see paragraphs 14.19 and 28. Challenge to the further findings of fact[15]I deal with each cluster of arguments separately: Alleged inconsistency with the evidence[16]I have identified one clear inconsistency here. The claimants contend that a document at page 375 of the original bundle identified that the Park reception opened at 9am, and not 8am as recorded in paragraph 14.1 of the July 2019 Reasons. I have not had access to the original bundle, but take the claimants to have accurately represented the contents of that page. This is potentially relevant to my finding at paragraph 14.3 that call-outs to replace gas bottles did not happen during the morning hour. Had I taken into account the fact that the Park reception opened an hour later, I might have found that these call-outs occasionally took place, as residents would otherwise have to wait up to two hours to buy a replacement. Overall, however, it would not alter my conclusion that, in general, the claimants had very little to do during the morning hour. Mrs Frudd’s concession[17]My relevant note of the hearing reads (with expanded abbreviations): “Customers visitors. That was only at night. Some had private visitors who came out on their own. They wouldn’t be entitled to have keys in the morning.”[18]The claimants say that, at the point of conceding that there was no entitlement to keys after 11pm, Mrs Frudd added, “that did not necessarily mean that they would not ask for them”. I do not have any note of that qualifying remark. In any event, if Mrs Frudd had said it, my decision would not have been any different. She was not suggesting that there was any evidence that any customer had ever asked for a key in the morning.[19]This note also deals with one of the discrete points made by the claimants in relation to customer visitors. I specifically noted Mrs Frudd saying that customer visitors were just at night. There is no reasonable prospect of my finding that they also arrived in the morning hour. Findings allegedly unsupported by the evidence[20]The remainder of the arguments appear to be about what would be likely or unlikely based on general background facts such as the profile of the residents and activities that were inherently likely or unlikely to take place before 8am. The claimants’ arguments are perfectly respectable, but I reject them for two reasons. 20.1. The claimants have already had one opportunity to make arguments such as these at the hearing on 10 May 2019. I do not think that it would be fair to entertain these arguments without giving the respondent an opportunity to comment on them at a hearing. Listing such a hearing would add to the delay and expense in this already long-running case. It would also be disproportionate to the amounts of money at stake. 20.2. These arguments are about whether the existence of particular activities can be inferred from background facts. Where there are gaps in the evidence, there is always going to be room for debate as to what inferences should be drawn in order to fill those gaps. The reason for the uncertainty is because there was no direct evidence of what, if anything, the claimants were actually doing in the morning. This state of affairs was actively pursued by both parties: at the hearing on 10 May 2019 both parties’ preferred position was for me to make my findings without considering any further evidence. The parties must have known that I would make findings of fact with which a reasonable person could disagree. New evidence[21]The reconsideration application (point (b) engaging with paragraph 14.3) refers to “the 8.00am gas run”. I am not aware of any evidence before me that such an activity existed. I would have regarded such evidence as relevant. In my view, if the claimants are seeking to rely on it now, it ought to be excluded. This is because the claimants could reasonably have been expected to have mentioned it before now. It would not serve the overriding objective to list a further hearing for that new evidence to be considered. Explanation for lack of examples of work done in the morning hour[22]I have considered the claimants’ explanations for not providing specific examples of anything they did in the morning hour. In my view, none of these explanations alters my view that the lack of examples is telling. I explained why I thought this to be a relevant factor in paragraphs 22 to 24 of the July 2019 Reasons. Balancing the factors[23]The additional evidence drawn to my attention in the reconsideration application does not particularly help me to decide whether the claimants’ tasks were done at any particular time of day. For the reasons I explained, when I looked at the individual activities, it seemed to me much more likely that they were done in the evening, rather than the morning hour.
Disposal
[24]There is no reasonable prospect of my being persuaded that it is in the interests of justice to vary or revoke the May 2019 Judgment. The reconsideration application is therefore dismissed.