Case round-up: On-call time and rest periods, and the validity and timeliness of complaints

On-call time and rest periods

MacCartney v Oversley House Management, EAT, 31 January 2006

BACKGROUND Mrs MacCartney was one of two resident managers employed at Oversley House, a retirement complex. Living on-site, she worked four days a week, providing 24-hour on-site cover. Her colleague worked the other three days. In addition to running communal facilities and activities, she was required to visit residents on a rota basis. Most of her duties were done between 8am and 6pm, but she was on call for the whole 24 hours to respond to emergency and non-emergency calls from residents. On average, the manager on duty would be called every other day between 6pm and 8am.

DECISION MacCartney brought tribunal complaints against her employer on the ground that she had been denied her entitlements under the Working Time Regulations 1998 (WTR) to:

  • a rest break during work (20 minutes if working more than six hours)
  • a daily rest period (11 consecutive hours of rest in each 24-hour period).

She also claimed that she had not received proper remuneration under the National Minimum Wage Regulations 1999. The tribunal dismissed her claims.

APPEAL The Employment Appeal Tribunal (EAT) upheld her appeal. It found the employer was in breach of its obligations to provide a rest break under the WTR. It was not sufficient to leave MacCartney to take such rest as she could during the day – she was entitled to an uninterrupted break, and to know at the start of it that it would be so. It also found that the whole period MacCartney was on-call was “working time”, so she had been denied her right to a daily rest period under working time rules. The employer had also failed to pay her in accordance with the National Minimum Wage.

The EAT said that MacCartney was entitled to be paid for all of her 96 weekly working hours, and not by reference to a pay period of 40 hours per week. The case was remitted for a remedies hearing.

Complaints must be valid and timely

Canary Wharf Management Limited v Edebi, EAT, 3 March 2006

BACKGROUND In March 2005, Mr Edebi resigned. His resignation letter raised numerous complaints and dealt with health issues, but did not mention disability discrimination. Nine months earlier, however, Edebi had raised grievances in which he had referred to disability discrimination.

Edebi brought a complaint alleging disability discrimination. Canary Wharf Management contended that he had not raised a grievance in writing about that claim, and therefore, the tribunal had no jurisdiction to hear it.

DECISION At a pre-hearing review, the tribunal found that the resignation letter raised all the relevant matters as a grievance, and that it complained about Edebi’s health in a way that could be construed as a claim for disability discrimination. Canary Wharf Management appealed, arguing that the employee had not raised a grievance about the disability discrimination. Edebi sought to link the resignation letter back to his earlier grievances, which did mention disability discrimination.

APPEAL The EAT held that if a grievance statement “cannot… be read… as raising the grievance which is the subject matter of the tribunal complaint, then the tribunal cannot hear the claim”. Although an earlier complaint may be considered as part of the wider context, in this case, the timescale was extensive, and the later letter made no reference to the detail
of the earlier ones. Despite feeling “great sympathy” for Edebi, the EAT found that the tribunal had no jurisdiction to deal with the disability discrimination complaint.

COMMENT The act of raising a complaint months or years prior to lodging a tribunal claim will not necessarily constitute the appropriate raising of a grievance. If it can no longer be said to be an outstanding grievance, perhaps because it was satisfactorily dealt with or because the employee has not pursued it, then the employee must raise it again in written form.

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