MacCartney -v- Oversley House Management
The definition of working time has proved crucial in the case of MacCartney -v- Oversley House Management (2006, IRLR 514). Following an earlier European decision, the employment appeal tribunal (EAT) said that workers who have to be on site for 24 hours are “working” for the whole period, even if they are allowed to sleep during that time.
Mrs MacCartney’s union, the GMB, instructed Thompsons to act on her behalf.
What were the basic facts?
Mrs MacCartney was the resident manager for a private housing development for the over 60s. Her annual salary (paid monthly) was £8,750, and she worked “four days per week of 24 hours on site cover”. She also had the benefit of rent-free accommodation.
As she was on call for the full 24-hour period, Mrs MacCartney had to be on site or within a three-minute radius during that time. Although she was allowed to sleep, she still had to respond to emergencies. On average, the duty manager was called out every other day at some time between 6pm and 8am.
Mrs MacCartney complained that, as a result, she was not able to take the daily rest periods and rest breaks to which she was entitled under the Working Time Regulations, and that she was being paid less than the national minimum wage (NMW).
What did the tribunal decide?
The tribunal found against Mrs MacCartney on all counts. First of all, it said that as she was not working the whole time she was on call, she was able to take the rest periods to which she was entitled.
As for rest breaks, it said that as she was essentially her own boss, there was no reason why she could not take a 20-minute break during the day. Even if it was interrupted by a call from a resident, she could retake it at a later time.
With regards to her claim that she was not being paid the NMW, the tribunal said she was not doing “salaried hours work” as she had argued, but “unmeasured work”.
As she did not have to work for the full 96 hours she was on duty, it could not all be counted as working time. Using a pay reference period of 40 hours per week, and including the weekly accommodation allowance she received, she was therefore being paid more than the NMW.
What did the EAT decide?
The EAT said that the tribunal had been wrong to decide that Mrs MacCartney was not working for the whole 24-hour period that she was on call. According to the European Court of Justice in SIMAP -v- Conselleria de Sanidad y Consumo de la Generalidad Valenciana, workers who have to be on site for 24 hours are “working” for the whole period, even if they are allowed to sleep during that time.
As for rest periods, the EAT said that: “to be able to rest effectively, the worker must be able to remove himself from his working environment for a specific number of hours, which must not only be consecutive but must also directly follow a period of work.”
These conditions could not be met, however, where the worker was on call in tied accommodation and Mrs MacCartney was, therefore, being denied the benefit of Regulation 10.
It also said that she was not able to take an uninterrupted period of at least 20 minutes under regulation 12. The fact that she could restart it later was irrelevant.
Finally, she was employed as a “salaried hours” worker as she was entitled to an annual salary, paid monthly. Given the finding that she was at work during the whole time that she was on call, she had been paid less than the NMW.
The EAT said that the extent to which a worker is likely to be called out (unless it is so insignificant as to be trifling) cannot be decisive of the question of whether they are working.