Labour & European Law Review Weekly Issue 429 22 July 2015
The Working Time Regulations state that working time is any time when the worker is working, at their employer’s disposal and carrying out their activities or duties. In Edwards and Morgan v Encirc Ltd, the Employment Appeal Tribunal (EAT) held that “being at the employer’s disposal” was not the same as being under the control and direction of the employer, nor was it restricted solely to carrying out their contractual duties.
Both Mr Edwards and Mr Morgan were employed in the production of glass containers. Mr Edwards was an employee health and safety rep and was scheduled to work three 12-hour night shifts between 7pm and 7am on Tuesday, Wednesday and Thursday. This was in the same week that he attended a health and safety meeting from 1pm until 4pm outside work hours on the Wednesday which finished at 4pm. He was paid for those hours and excused the Tuesday night shift and allowed to start his Wednesday shift at 10pm rather than 7pm. However, that only left six hours between the end of the meeting and the start of his shift.
Mr Morgan was a shop steward and was scheduled to work four 12-hour night shifts from Friday to Monday. He attended a trade union meeting on Friday which finished at 4pm. He too was allowed to start his Friday night shift later than normal. However this only gave a break of nine hours from the end of the meeting until the start of the shift.
The men argued that, under the Working Time Regulations (WTR), they were denied their right to 11 consecutive hours’ rest in any 24-hour period. The company argued that the men were not working when they attended the union meetings and therefore there was no breach of the rest provisions under the WTR.
Regulation 2(1)(a) of the WTR states that working time means “any period during which [the worker] is working, at his employer’s disposal and carrying out his activities or duties.”
The tribunal held that although the men were “working” for the purposes of regulation 2(1)(a), the other two elements of the test were not satisfied, so it could not amount to working time as all three elements of the definition had to be met. They were not at their employer’s “disposal” because they were at a meeting representing employees and as such were not under the control and direction of the employer. Neither were they carrying out the activities or duties for the purpose for which they were employed i.e. the production of glass containers, while they were attending the meeting.
The EAT allowed the appeal, holding that the tribunal had adopted an unduly restrictive approach by linking the term “disposal” to particular duties that the employees carried out and by ignoring the underlying purpose of the regulations which is to protect the health and safety of workers.
In terms of the WTR, it found that “being at the employer’s disposal” was not the same as being under the control and direction of the employer. Nor was it restricted solely to carrying out their contractual duties. It could include activities which stemmed from the employment relationship, gave a benefit to the employer in a broad sense and which were done with the employer’s knowledge.
The case was remitted back to the tribunal to determine if the time spent at union meetings was working time.
Although the EAT did not make a specific finding that the time spent at the health and safety meeting or union meeting amounted to working time the broad approach adopted by the EAT means that employers would be best to treat union meetings as working time.