In a recent employment law case, Martin v Southern health and Social Care Trust, the Northern Ireland Court of Appeal (NICA) has held that a nurse was not ‘on call’ during her rest breaks even though the employer could not guarantee that the breaks would be uninterrupted.
Accordingly, the breaks did not equate to ‘working time’ for the purposes of the Working Time Regulations (Northern Ireland) 1998 (similar to those applied in England) and the nurse was not entitled to be paid during these periods. In so holding, the Court took account of the fact that the arrangements had been specifically negotiated with the unions to ensure that employees took rest breaks that were uninterrupted other than in ‘exceptional circumstances’.
Under Reg 2(2) of the NI Regulations, ‘working time’ is defined as any period during which the worker is working at the employer’s disposal and carrying out his or her activity or duties. Under Reg 12, a rest break must be ‘for an uninterrupted period of not less than 20 minutes’, which the worker may take away from his or her workstation. This requirement is disapplied in certain special cases ‘where the worker’s activities involve the need for continuity of service or production’, including ‘services relating to the reception, treatment or care provided by hospitals or similar establishment’ (Reg 21(c)(i)). If this is the case, workers should be permitted to take compensatory rest (Reg 24).
In this case Martin, a nurse, worked a night shift which entitled her to two unpaid rest breaks, as contained in the NHS Terms and Conditions of Service Handbook. Owing to the nature of her work, her breaks had to be taken on the hospital premises and in practice were often interrupted by incidents ranging from ‘significant medical emergencies’ to routine practical matters. However, to compensate employees for interrupted breaks, the hospital operated a procedure for employees to log time lost during rest breaks and claim it back later.
In 2006, Martin raised a formal grievance, claiming that since she was not allowed to leave the hospital premises, she was effectively on call during her rest breaks and should therefore be paid. Her grievance and subsequent appeal were dismissed, and later in February 2008, Martin claimed payment for the breaks on the ground that they constituted working time.
The tribunal considered the case of Landeshauptstadt Kiel v Jaeger, involving hospital doctors, in which the ECJ held that on-call time (at a place determined by the employer) amounted to working time even where the worker is permitted to sleep or rest during this period. In the tribunal’s view, Martin’s rest breaks could not, in practical terms, be differentiated from the on-call time of the doctors. Her breaks were often interrupted, she was working at her employer’s disposal and she was required to remain on the premises during the breaks. However, since there was an appropriate compensatory rest system in place, the Trust had complied with the Regulations and Martin was not entitled to payment in respect of her breaks.
The case was referred to NICA which upheld the tribunal’s decision but on different grounds. It held that the arrangements in this case had been developed to ensure that employees could enjoy rest breaks that were uninterrupted subject to ‘exceptional circumstances’ arising from the demand for continuity of the services provided. Where rest breaks were interrupted, the Trust had ensured that employees could take compensatory rest. In the Court’s view, the provision of such breaks was ‘conceptually quite distinct’ from ‘on-call’ duty, during which the employee remains at the disposal of the employer. To equate rest breaks with on-call duty might result in some additional remuneration for the employee but would effectively destroy their basic purpose as a means of ensuring that shifts in excess of six hours could be worked without placing the health and safety of the staff or patients in jeopardy.
This is an interesting issue concerning staff that are required to remain on the premises during their breaks and may be called upon during their break time too. If you have any queries regarding this issue in your own business, please do give us a call.
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