Truslove & Anor v Scottish Ambulance Service (Working Time Regulations) [2014] UKEAT 0053_13_0804
EAT
Truslove & Anor v Scottish Ambulance Service (Working Time Regulations)
[2014] UKEAT 0053_13_0804 · 2014-04-08
[21]“ I do not think that a qualitative requirement, as an additional test of whether a given period can be accounted as rest within the cycles of time that are identified, is to be found in the wording of the WTD. It is true that the safety and health of workers lies at the heart of the rules that it lays down. But there is no indication anywhere that it was concerned about the quality of the minimum periods of rest, other than to make it clear in the definition of ‘rest period’ that it means a period which is not working time. ” 22. At paragraph 36 he repeated the point:[36]“ I do not think that the quality of the periods that are set aside during each cycle determines whether the minimum requirements have been satisfied. I accept that the purpose of the entitlement to annual leave is to enable the worker to rest and enjoy a period of relaxation and leisure, as the ECJ has repeatedly made clear. But the WTD has met that purpose by laying down the minimum periods of rest that must be given in each cycle. As the ECJ said in Gomez [2005] ICR 1040 , para 30, the fact that rest means actual rest is demonstrated by the rule that it is only where the employment relationship is terminated that article 7(2) permits an allowance to be paid in lieu of paid annual leave. But the ECJ has not said that a pre-ordained rest period, when the worker is free from all obligations to the employer, can never constitute annual leave within the meaning of that article. I would hold therefore that ‘rest period’ simply means any period which is not working time: see article 2.”23. It was not, submitted Mr Brown, an error of law to whittle down the relevant factors to one, if indeed the tribunal did, though he preferred to see the tribunal as having taken account of all the relevant circumstances. The distinction it was seeking to draw was between those in the workplace and those not. It had regard to SIMAP and Jaeger and, by having regard to SIMAP , a case which had interpreted the European Directive, it had regard to the principles involved.24. The fact that the tribunal had used the words it did in paragraph 76 did not mean that the tribunal was identifying that the test was whether the employee was confined to one specific location. To refer to the basis of a decision is not to say that it was the only factor of importance. In paragraph 76 the tribunal had further given latitude to what it was considering by using the word “involved” and, it might be added, “almost a form of confinement”, thereby indicating it was making a broad factual assessment, even if this was the feature it singled out for specific mention.25. He submitted that, had it been able to whittle down the facts and circumstances, so that only one factor mattered, it would not have referred to facts and distinctions being so fine. It would simply have referred to one fact and a distinction which was, as Mr Brown put it, not at all fine, that being whether an individual was or was not confined to one specific location.26. As to the second ground of appeal, in truth, he submitted, the facts of the Claimants’ cases were truly comparable to that in Blakley . The judgment of the tribunal was an assessment made on the facts. The tribunal had concluded at paragraph 74 that for Mr Blakley to do his work it must readily be taken that he had to remain “in the area”. The tribunal therefore reached the right decision and without error of law. Discussion27. It seemed to me that the tribunal did not engage clearly with defining the principle by which it sought to distinguish that which was work from that which was rest. Nor did it focus upon both sides of the coin. In a case such as this, it is important to remember that that which is not work is rest and vice versa. Thus to ask whether a person is at rest within the meaning of the Regulations and Directive is asking if he is not at work.28. The principles, so far as they can be defined, must be taken from the latest exegesis by the European Court, that being the case of Jaeger . In that, there was some considerable discussion of the purpose of the Directive (see paragraphs 45-47), and it was noted that the genesis of the Directive was in the need to improve living conditions and to provide satisfactory health and safety conditions and working environment for employees.29. The cases which have troubled the courts have been those in which it has not been clear, as a matter of fact, whether an individual is at work or conversely rest in the particular circumstances. “On-call working” is a particular example. Inevitably, this imposes some constraints, but it also permits considerable liberty. The dividing line between that which is work and that which is rest was drawn in Jaeger, and acknowledged in MacCartney to be so drawn in the paragraphs which I have cited above in discussing Mr Hay’s submissions, in particular 63, 65 and 69. They emphasise that the question is whether the individual is obliged to be present and remain available at the place determined by the employer. It was exactly the same principle which was set out in Blakley , at paragraph 22 of the Court of Appeal decision, by reference there to SIMAP . The words “being contactable” in the third sentence of paragraph 22 are followed by this:
“without being obliged to be present and available at the work-place or a place designated by the employer”
. Thus each of Jaeger , SIMAP, Blakley and MacCartney requires as a matter of principle that there be a focus upon whether the place at which the employee happened to be was one required by the employer. There may be many circumstances in which a designated place of work is so permissively defined that it amounts to no particular exercise of the employer’s entitlement to control the employee in the way he provides his services. An obvious example would be that of being forbidden from going abroad during the time of on-call duty. There may be other examples far less extreme. But it seems to me that, in order to determine what principle should apply regard must be had, as it was in Jaeger , even if broadly, to the purpose of the provisions. 30. I accept the utility of the test posed by Mr Hay as to whether the time was one’s own. It was a test which, in his submissions, Mr Brown himself utilised. It is, like all such tests, to be viewed with care, because the statutory question is that posed by the regulation, and it cannot be answered simply by assuming that a test which is useful in some cases is the answer in all. Nonetheless, what it indicates is that if, as it is, the provision as to rest breaks is a health and safety provision dealing with the work environment, then it must be remembered that work in employment is performed in a relationship characterised by control. Indeed without control, and its flip-side, subservience, there can be no employment. If a worker is obliged to be away from home, or even in some circumstances to remain at or within a very close distance from home, time is that much less his own. The time is all the more under the control of the employer. To that extent the worker has less relief from employment and those aspects of it which might be stressful, physically and perhaps more particularly mentally. The relaxation which is available in the company of family and friends (or at least may be) and the pursuit of personal hobbies and the like, all characterised by the exercise of free choice, free from the direction of the employer, is unavailable where an employee remains shackled by his employer to a particular location and is subject whilst there to providing an immediate response to his employer’s bidding. Though different regimes underpin different employments, and it may be misleading to attempt to generalise from one to the other, there may be some help to be gained by looking at those instances which have been examined in the courts. The constraints upon the doctors in SIMAP who were at rest and those who were at work were different. Both had obligations. Both were not entirely free of their employer’s control. But the degree of control over the place in which the work was to be performed, and where the employee was to remain whilst on call, was plainly of a different dimension from that in Jaeger when it came to drawing a distinction between rest and work. The employee in Jaeger could not be said to be at rest and therefore had to be at work. 31. Here, in the present case, the tribunal did not identify as such the correct test and the correct approach, applying Jaeger .. I reject as an error of law the argument by comparison with Blakley which the tribunal adopted. A comparison is of no use unless one identifies first what particular factual features are of relevance and materiality. Simply to say that a case has more in common with one case than another case is to answer no particular question. In any event, viewed through the lens provided by SIMAP and Jaeger , and indeed recognised, as I have pointed out, in paragraph 22 of Blakley itself, if the central question of fact is whether the employee is required to be present at a place determined by the employer, then Mr Blakley was not and the Claimants here were. The fact that it must be readily taken that Blakley, for his convenience, might remain in the area was an assumption made by the tribunal. There was some factual basis which might show the assumption to have had some force. But the tribunal’s logic went from that in the last two sentences of the tribunal’s paragraph 74 to its application of a test at paragraph 76 which is plainly wrong: that is to say, that the test apparently applied in paragraph 76, (I accept Mr Hay’s submissions upon this), was to see the case-law as requiring a form of near confinement to one specific location as the distinguishing feature. 32. The specificity of a location seems to me beside the point. It is the specifying of it and the lack of freedom to be anywhere else that is the relevant distinction. I put it in argument that if, for instance, an employee had his month’s work divided up into four weekly periods, one of which he spent on call but at home, the next of which he was required to move to a location or somewhere within a mile or so of it, 50 miles away, and then again 100 miles away, and then for the last week 25 miles away, could it be said that he was at rest at each and all of those locations? Mr Brown’s answer, as it had to be for the purposes of this appeal, if he were to succeed, was yes. But it seems to me wholly unrealistic in the context of these Regulations, with this purpose, that that should be the answer derived as a matter of principle to be applied to the facts. Rather, the focus must be on the distinction between rest and work: on the approach taken in Jaeger , this concerns whether the place at which an employee is required to be present is or is not determined by the employer. The answer in the present case cannot depend upon whether, within at least narrow limits, the employee was free to move a few hundred yards or even a couple of miles from that base. He had to be where he was. He could not be at home. He could not therefore enjoy the quality of rest which he was entitled to have. As to that, I accept entirely that Transocean is binding upon me. It does not deal with the current question. It deals with the issue whether that which already is accepted to be a period of rest also may be treated as a period of holiday. The distinction between rest on the one hand and work on the other has nothing to say in making that distinction. The matter is clear looking at paragraph 21 of the judgment of Lord Hope, where he notes that the tribunal was not concerned about the quality of minimum periods of rest, adding “other than to make it clear in the definition of ‘rest period’ that it means a period which is not working time”. In other words he was not concerned with anything qualitative for the purpose of the decision which the Supreme Court had to make, nor was he saying anything determinative about whether quality made the difference between rest and work, and there is no hint in that paragraph that he thought it did. 33. For those reasons, I accept that the decision of the Judge was in error. 34. Both parties have invited me to exercise the powers of the Appeal Tribunal and to substitute its own judgment. In doing so, I begin by analysing the facts which both parties have prayed in their aid from their respective positions. On the facts as found by the tribunal, taking into account the additional facts which have been agreed for the purpose of this appeal, and applying the principles which I have set out, I have concluded that the time spent by the ambulance paramedics when required to be away from home and required to be at a particular location in a particular place, that is within three miles of the ambulance station, there to respond, if not immediately, at least within a target time of three minutes and to do all they could to achieve that time, could not be said to be their own time. They were working and not at rest. 35. Accordingly, I allow the appeal and substitute my decision to that effect. I thank the parties for the industry they have shown and their assistance to the court.