Can an employer who removes an employee from a contractual on-call roster deny the employee the payment associated with that roster? The Court of Appeal, in Atchoe v Camden Primary Care NHS Trust, said yes, in circumstances where the employer had the right to remove the employee from the roster for health and safety reasons.
Atchoe worked for Camden Primary Care NHS Trust as a maintenance technician, for which he required certain technical qualifications. On top of his normal hours, Atchoe’s contract required him to contribute to an out-of-hours on-call system. For this, he received two additional payments – a standby payment plus overtime for the hours worked when he was called out.
The trust suspended Atchoe during an investigation into an unrelated matter. Following the investigation, the trust asked Atchoe to produce his qualification certificates. When he failed to produce the originals, the trust removed him from his on-call roster for safety reasons. The trust initially said that he would receive his standby payment, but following a series of meetings during which Atchoe refused to co-operate, the trust did not make any payment in respect of the on-call roster.
Atchoe complained to the tribunal that the trust had unlawfully deducted from his wages. He said that he was entitled to carry out his on-call roster duties, and regardless of whether he actually was on-call or not, the trust should have paid him. The trust said that Atchoe had no right to be paid for work he had not carried out.
The tribunal upheld Atchoe’s claim. It agreed that the trust was entitled to remove Atchoe from the roster but said that it could not withhold his on-call payments.
The EAT and Court of Appeal disagreed. The Court of Appeal said that the trust had an implied right to remove Atchoe from the on-call roster for health and safety reasons.
Once the trust had taken him off the roster in line with its entitlement to do so, it followed that Atchoe was not entitled to any payments connected to the roster. In other words, no work, no pay.
This case reminds us to go back to first principles when analysing entitlement to wages – the starting point being the contract of employment, which should include an assessment of both express and implied terms. In this case, the implied duty to take reasonable care of the health and safety of employees meant that the employer was not only entitled, but obliged to remove the employee from the roster until the question of certification was resolved.
However, what this case illustrates so much more graphically is the need for effective workplace dispute resolution procedures to prevent this sort of issue ending up at the Court of Appeal. For reasons not entirely clear, the trust’s handling of the matter caused Atchoe to adopt an extremely intransigent approach to a relatively straightforward situation (ie the verification of his qualifications) that an internal resolution quickly became a remote possibility.
In cases such as these it is always better to look for an alternative way of resolving the matter – perhaps by the intervention of a neutral third party or some form of mediation – to avoid a trip to the Court of Appeal.
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