Case round-up

Case round-up by Eversheds 020 7919 4500

Sleeping on the job
Landeshauptstadt Kiel v Jaeger, ECJ, 11 September [2003]

Time spent by doctors on-call in a hospital constituted ‘working time’ under
the Working Time Directive, even where the doctor was allowed to sleep during
periods of inactivity.

Jaeger, a doctor in Germany, worked a number of on-call duties each month.
When on-call, Jaeger was required to stay at the hospital, but was allocated a
room to sleep in when his services were not required.

The Working Time Directive defines ‘working time’ as any period during which
the worker is working, at the employer’s disposal and carrying out his
activities or duties, in accordance with national laws and/or practice.

Under German law, only the time spent actually performing tasks when doing
on-call duties was classed as ‘working time’. All other time spent on-call,
when the worker’s services were not required, was classed as ‘rest periods’.

Jaeger challenged this arguing that his on-call duty in its entirety should
be deemed to constitute ‘working time’. However, his employer regarded all
periods of inactivity during on-call time as rest periods and not as ‘working

The case was referred to the European Court of Justice (ECJ).It ruled that
the Working Time Directive had to be interpreted as meaning that on-call duty
performed by a doctor where he was required to be physically present in the
hospital had to be regarded as constituting in its totality ‘working time’,
even where the doctor was permitted to rest at his workplace when his services
were not required.

Sick pay entitlement – who decides?
Taylor Gordon & Co Limited (trading as Plan Personnel) v Timmons,
EAT, 25 September [2003]

An employment tribunal had no jurisdiction to consider whether a worker was
entitled to SSP, only whether there was a non-payment of SSP to which he was
properly entitled.

Timmons brought a tribunal complaint for unlawful deduction from wages by
the respondent employment agency (Plan Personnel), in that it had refused to
pay him statutory sick pay (SSP). Plan Personnel defended the claim, arguing
that Timmons was not entitled to SSP and therefore there had been no deduction
from wages. The issue arose as to whether the tribunal had jurisdiction to
decide if Timmons had been entitled to SSP.

The tribunal held that it did have jurisdiction to deal with this issue, and
upheld Timmons’ complaint. Plan Personnel appealed, arguing that exclusive
jurisdiction to determine issues on entitlement to statutory payments was
vested in the Inland Revenue Commissioners.

The appeal was allowed. It was clear that the appropriate authority for the
determination of disputes relating to statutory payments, such as SSP, lay with
the Inland Revenue Commissioners. The tribunal was wrong to hold that it had
jurisdiction to deal with such a complaint.

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