Employment Law: British Nursing Association v Inland Revenue - Case Study Example

Employment Law--Case Report [British Nursing Association v Inland Revenue] Employment defined in various terms may be perceived differently as well. It included hiring, managing, rewarding and taking care of people in return of their services and work they render for an individual or organization. Details of work and employment are written and agreed on contract between two parties. Scope of employment defines the working areas of employee and employer. . "Employment law is the body of laws, administrative rulings, and precedents which addresses the legal rights of, and restrictions on, workers and their organizations. As such, it mediates many aspects of the relationship between trade unions, employers and employees. In some countries (such as Canada), employment laws related to unionised workplaces are differentiated from those relating to particular individuals. In most countries however, no such distinction is made. The labour movement has been instrumental in the enacting of laws protecting labour rights in the 19th and 20th centuries." 1 Summary: 01, 02 British Nursing Association v Inland Revenue (NMW Compliance Team) [2002] LLR 659 "In this case the EAT held that nurses providing a telephone service from their own homes at night were working throughout the night, even though they were able to do as they wished and might be asleep between telephone calls. The employees provided emergency nursing cover for nursing homes through a booking service that was staffed by qualified nurses 24 hours a day. During the day the service was provided from various offices but at night it was provided by nurses working from their homes. The Inland Revenue NMW Compliance Team served an enforcement notice on the employer. The Employment Tribunal considered that there was essentially no difference between the day workers and the night workers, except that the night workers worked from home. The Tribunal therefore concluded that the nurses were working for the whole of their night shift. The EAT upheld the decision of the Tribunal. The EAT considered four aspects: the nature of the work; the extent to which the workers' activities were restricted or unrestricted when they were not dealing with telephone calls; the way in which the parties approached their mutual obligations and the way remuneration was calculated; and the extent to which the period during which work was performed was ascertainable. The fact that the nurses were remunerated according to a shift system illustrated the nature of the obligation, since the employer would not be expected to pay them for time when they were not working. The EAT considered that the nurses' situation was different from that of other home workers because they could not choose the periods of time during the night when they answered the telephone calls. The continuing obligation to hold themselves ready to answer the telephone throughout the night was an important element in considering which periods of time constituted work. The main issue was what was to be regarded as their "actual work". The EAT emphasised that the task is to look at all the facts of the case, rather than trying to apply a general rule or categorise the nature of the work involved." 01 Further more detailed description of type and work of National Minimum Wage Compliance Team is as Follows: "The National Minimum Wage Compliance Team is an arm of the Inland Revenue charged with the task of enforcing the minimum wage with extensive powers to bring infringing employers to the Tribunal. It has had a remarkable track record of success with well selected and well prepared cases. The result is greater compliance with the NMW, more money for workers and more tax and NI revenue for the Treasury. British Nursing Association -v- Inland Revenue ( National Minimum Wage Compliance Team ) concerned workers who operated a telephone booking service for a bank nurse agency. During the day the service was conducted from the employer's premises, but the night shift worked from their homes. The calls were diverted to the night "duty nurse" who would take the call and book the nurse. The workers were paid an amount per shift. The employers considered that the staff was not working when they were not actually answering the phone and therefore not entitled to the minimum wage during these periods. Their pay therefore fell below the level of the minimum wage if calculated over their entire shift period. The nurses and the NMW Compliance Team disagreed. A worker is entitled to be paid at least the rate of the NMW for all periods of "time work". The NMW Regulations as they then were provided that "In addition to time when a worker is working, time work includes time when a worker is available at or near a place of work, other than his home, for the purposes of doing time work, and is required to be available for such work except that, in relation to a worker who by arrangement sleeps at or near a place of work, time during the hours he is permitted to sleep shall only be treated as being time work when the worker is awake for the purposes of working". So the employer's argument was that the night shift staff were not actually working apart from the time on the phone and, as they worked from home, were excluded by Regulation 15(1) from pay for the other periods. The Employment Tribunal, the Employment Appeal Tribunal and now the Court of Appeal disagreed. Cutting right to the heart of the issue and with an enviable clarity the Court of Appeal stripped the fallacy of the employer's argument bare. The truth of the matter is that an employee engaged to operate a night-time telephone service from home is "working" when waiting to answer the phone. It would not be argued that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to remuneration, during periods when he or she was actually on the phone. It was no different at night when the same service was being provided." 02 This is not the only case, various other examples are also found such as Hendricks -v- Commissioner of Police for the Metropolis (2003) has a similar story but discrimination type is different: Hendricks -v- Commissioner of Police for the Metropolis [2003] 02 "Three months is the magic number for bringing most Tribunal claims. A claim must be presented to the Tribunal within three months from the act complained of. (Equal pay is the notable exception to this rule where it is six months from the ending of the employment contract). The rule begs the question: three months from when In unfair dismissal cases this is the effective date of termination of employment, and can only be one date, but in discrimination cases where the allegations often span a lengthy period the position is much more complex. The law provides in each of the Sex Discrimination Act 1975, Race Relations Act 1976 and Disability Discrimination Act 1995 that an act which extends over a period of time is treated as being done at the end of that period. So whether something can be described as a continuing act is often determinative of whether the claim has been brought within the three month period. It was exactly this point that the Court of Appeal has considered in the landmark case of Hendricks -v- Commissioner of Police for the Metropolis. Ms Hendricks' claim alleged discrimination over most of her 11 years service in the force, involving nearly 100 specific allegations against 50 or so officers. She had been off sick for a period of 12 months before the Tribunal claim was lodged and the police force sought to argue that her claim was out of time and that it would not be just and equitable to extend time to validate her late complaints. The Employment Tribunal accepted Ms Hendricks' arguments that her allegation was in effect of a continuing act that "a policy, rule or practice could be detected as a result of which female officers and officers from ethnic minorities were treated less favourably than white male officers". The Employment Appeal Tribunal overturned this decision finding that there had neither been an allegation of a discriminatory policy, rule or practice, nor allegations that others had been similarly affected. The Court of Appeal has now restored the original Tribunal decision in a significant judgment. They found that the approach by the EAT had been too literal. The concepts of policy, rule, practice, scheme, or regime in the various cases such as Owusu -v- LFCDA were only examples of when an act extends over a period. Instead, the focus should be on the substance of the complaints that the Commissioner of Police was responsible for an ongoing situation or state of affairs in which female or ethnic minority staff members were treated less favourably. The question is whether that was an act extending over a period, or a succession of unconnected or isolated specific acts which would each carry their own time limit. To describe it as an ongoing situation or state of affairs was, the Court of Appeal said, a more precise way of characterising Ms Hendricks' case than to use terms such as "institutional racism" or a "prevailing way of life", a "general policy of discrimination" or a "climate" or "culture" of unlawful discrimination. The Employment Appeal Tribunal had been sidetracked into focusing on whether a policy could be discerned. The Court of Appeal also noted that Ms Hendricks also alleged discrimination in the way she was treated whilst off sick and absent from the workplace, for example, in relation to sick pay and the contact that had been made with her when she was at home. This is an important case which will make it significantly easier for Applicants to overcome possible time limit difficulties. The Court of Appeal also stated that there must be close case management in lengthy discrimination cases, with agreed lists of issues, and attempts to keep the proceedings within reasonable bounds by concentrating on the most serious and most recent allegations. Ms Hendricks case can now proceed to a full hearing." 02 2- Critique of the Broader Area of law: Current Payment Rates: The National Minimum Wage Act of 1998 that was enforced on 1 April 1999. Main points cover various problems of employees including discrimination in compensation has some salient features: The amount in respect of a worker aged 22 or over was raised from 3.70 per hour to 4.10 from 1 October 2001. The Government has accepted a further increase to 4.20 from 1 October 2002, subject to the economic conditions prevailing at that time. 03 Accepted change may not define the rate of change and perspective of change in future, government should accept and apply the calculated rate of increase based in index system for next few years to protect the people from dearness. For a worker aged 18 to 21 inclusive, or a worker receiving accredited training on starting a new job, the amount was raised to 3.50 per hour from 1 October 2001. This is known as the development rate was highly appreciated at the time of enforcement but found not satisfying with the global changing financial trends. The Government has not accepted the Low Pay Commission's recommendation, made in June 2001 that the adult rate should apply at age 21. The Act contains provisions as to employment-related benefits which may be taken into account in calculating the amount of the employee's hourly rate of remuneration. Employment Policies to Protect Privacy of Employees: 01 Frustration is the cause of recent regulations covering the circumstances in which an employer can intercept, monitor and record an employee's e-mails or telephone calls. The Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 came into force on 24 October 2000. As Regulations are made under the Regulation of Investigatory Powers Act 2000 and these are enforceable everywhere there employer is opine to observe employees in any circumstances. It is a basic principle of the Act that communications may not be monitored or recorded without the consent of the sender and recipient. The Regulations provide the circumstances in which it will be lawful for an employer to intercept, monitor or record communications without the consent of the sender, caller or recipient. Those circumstances include investigating or detecting any unauthorized use of the employer's e-mail or telephone system, for example, so as to ensure that employees do not breach the employer's rules on the use of the system. However, if an employer wishes to monitor or record without the employee's consent, the employer must make all reasonable efforts to inform every person who may use the system that communications may be intercepted. It is therefore important for an employer to establish rules and policies relating to the use of telephones and e-mails and to state the practice that will apply as to monitoring, recording or other checking of the employee's use of those systems. Rules and policies should be established as to the extent to which any personal use of the telephone or e-mail is permitted, and for preventing any breach of confidentiality, defamatory statements or messages which may be offensive to others on grounds such as race, religion or gender. The increased accessibility of the Internet has also made it important to establish appropriate rules and policies within the employer's organization, for example prohibiting access to pornographic or other offensive material, or prohibiting any infringement of copyright when material of any kind is downloaded or forwarded to others. Reports are increasing, in legal journals and newspapers, as to disciplinary action taken as a result of an employee's improper use of e-mail systems & Internet. 01 Maternity Leave and Female Issue01 The period of ordinary maternity leave has increased from 14 weeks to 18 weeks in any case where the expected week of confinement begins on or after 30 April 2000 that creates upsetting and alarming situation for various employers. Employees are entitled to ordinary maternity leave irrespective of their length of service. It may begin at any time from the beginning of the 11th week before the expected week of confinement, provided the employee gives at least 21 days' notice. The qualifying period for additional maternity leave has been reduced from 2 years to 1 year, by reference to the employee's continuous employment at the beginning of the 11th week before the expected week of confinement. Brings joy among employees and in private sector the concept is not applicable with a smile at least. Additional maternity leave remains unchanged as a period that begins at the end of ordinary maternity leave and may extend up to 29 weeks from the beginning of the week in which the birth occurs. There has also been a relaxation of the notice requirements on the employee. The notice given by the employee for starting maternity leave covers both ordinary and additional maternity leave. The employee is no longer required to state that she is exercising her right to return to work. The employee must give at least 21 days' notice if she wishes to return to work before the end of ordinary or additional maternity leave. She is not otherwise required to give notice of her intention to return to work at the end of ordinary maternity leave. There are further provisions concerning notification as to the date for returning to work at the end of additional maternity leave. There are also specific provisions providing protection from dismissal or detrimental treatment for any reason relating to maternity. These changes were made by the Maternity and Parental Leave Regulations 1999, which came into force on 15 December 1999. 3. Recommendations for Employer "In order to ensure compliance with the National Minimum Wage Act an employer and worker need to know the hours for which the worker is to be paid. For this purpose four types of work are specified by the National Minimum Wage Regulations 1999, SI 1999/584 (regs 3, 4, 5 and 6 respectively), namely : time work; salaried-hours work; output work and "unmeasured work".15 "National Minimum Wage Regulations 1999 reg 3 sets out the precise definition of "time work". The DTI National Minimum Wage Guide (para 122) states that "Generally speaking, anybody whose pay goes up or down depending on the actual hours they work is likely to be doing time work. Most workers will be time workers if they are not on an annual salary". 15 "Time Work" must be contrasted in particular with with "unmeasured work" (National Minimum Wage Regulations 1999 reg 6) in respect of which averaging is permissible (see National Minimum Wage Regulations 1999 reg 27 "Unmeasured work" and National Minimum Wage Regulations 1999 reg 28 "'Daily average' agreements for unmeasured work"). 15 "Violence at work is a huge and ever increasing problem at many workplaces. It is more prevalent in the public sector - as anyone will tell you who has had the misfortune to visit an A & E Department on a Friday night and witnessed the abuse that hospital staff suffers." The HSE's definition of work related violence is: "Any incident in which a person is abused, threatened or assaulted in circumstances relating to their work" (HSE 2000) Fair understanding of employment rights should be generated and communicated among all members. "The Employment Rights Act 1996 was a consolidating measure, drawing together and re-enacting previous Acts of Parliament and amendments made to them. Thus it completely replaced the Employment Protection (Consolidation) Act 1978." The Employment Relations Act 1999 implements a package of miscellaneous reforms to employment and trade union law resulting from consultation on the Government White Paper "Fairness at Work" in 1998 it should be considered and included.01 The Act contains provisions on particular matters relating to trade union recognition, trade union membership, industrial action ballot requirements and unfair dismissal arising from industrial action. 01 It includes various rights relating to maternity leave, parental leave, time off for dependants, and the employee's right to be accompanied at grievance and disciplinary hearings held by the employer. 01 The Code of Practice on Disciplinary and Grievance Procedures was laid before Parliament on 7 June 2000 and came into effect on 4 September 2000. 01 The Code is issued under powers in the Trade Union and Labour Relations (Consolidation) Act 1992. Although the Code does not impose legal obligations directly on employers, it is admissible in evidence in any proceedings. 01 An Employment Tribunal is required to take into account any provisions of the Code which appear to be relevant to a question to be determined in the proceedings. In this way the absence of procedures complying with the recommendations may be taken into account by the Tribunal. 01 The Code includes many detailed recommendations concerned with the requirements of natural justice, principally for the employee to be informed of the allegations and supporting evidence, and given the opportunity to challenge them before any disciplinary decision is reached. 01 The Code also includes guidance on implementing the statutory right to be accompanied at disciplinary and grievance hearings, contained in the Employment Relations Act 1999. The statutory right of accompaniment came into force on 4 September 2000. 02 The companion may be a working colleague, an official of a trade union recognised by the employer, a full-time official employed by a trade union or a trained or experienced lay trade union official. Significantly, these rights apply even if the trade union is not formally recognised within the employer's organisation. 02 Appendix: J U D G M E N T LORD JUSTICE PETER GIBSON: I will ask Buxton LJ to give the first judgment. LORD JUSTICE BUXTON: This appeal from the Employment Appeal Tribunal in proceedings where it upheld the decision of an Employment Tribunal, concerns what is in truth a very short point on the construction of the National Minimum Wage Regulations 1999. The British Nursing Association ("BNA"), who are the appellants both here and in the Tribunal below, is an organisation which provides what are described colloquially as "bank nurses" on an emergency basis. It provides and advertises a 24-hour booking service, which during the day is operated from its own premises, but during the night time services are provided by employees who work from home. During that period the members of the staff who are concerned answer calls that are diverted to their home number and take action on the request by identifying and contacting the person who is actually to do the work. Further detailed information about the terms and conditions of the members of staff involved is to be found in a statement of agreed facts that was helpfully appended to its judgment by the Employment Appeal Tribunal, and which I equally append to this judgment. The members of staff are paid an amount per shift. Whether they are paid an amount that satisfies the requirements of the national minimum wage therefore depends on the amount of time during the shift for which they are to be considered as actually working in the terms relevant to the Regulations. The appeal involves the construction of Regulations 3(a) and 15(1). 3(a) reads: "In these Regulations 'time work' means- (a) work that is paid for under a worker's contract by reference to the time for which a worker works and is not salaried hours work". Regulation 15(1) is of importance in this appeal and reads as follows: The parties asked the Employment Tribunal to determine certain specific issues, and its determination on those points is set out in preliminary paragraph 1 of its decision and, for the purposes relevant to this appeal, reads as follows: "On the matters of principle which the parties asked the Tribunal to determine, the Tribunal determines as follows: (i)In accordance with Regulation 15(1) of the National Minimum Wage Regulations 1999, the workers are engaged in time work at times when they are awake and awaiting calls at home. (ii)Time work does not include time when they are asleep in accordance with Regulation 15(1)." However, that Tribunal made a specific finding in paragraph 37 of its determination: "... in this case we find that the workers are working for the whole of their shift." Its reasoning to that effect is to be found in paragraphs 26 and 27 of its determination: "26.In this case the workers are employed to answer the telephone, to assign bank nurses and, to a limited extent, to give advice. It is a 24 hour service. During the extended day, this service is provided from offices around the country. During the night, broadly from 8.00 pm to 9.00 am, it is from the homes of the workers who are the subject of this notice. It is a seamless service. In other words, the client does not know the location of the person who is answering the telephone. 27.We therefore find that these workers are 'working' through the nightshift answering the clients' telephone calls and there is, therefore, no difference between the day workers and the night workers, except that the night workers work from home." That reasoning was criticised as suggesting that the workers spend the whole night actually on the telephone. I would, however, respectfully agree with the Employment Appeal Tribunal at paragraph 14 of its judgment that, whilst the Employment Tribunal expressed itself somewhat loosely in these particular paragraphs, it was in fact basing itself on the whole of the evidence as to the nature of the duties of the workers already set out or referred to. On the facts as set out, I would respectfully agree with the Employment Appeal Tribunal in paragraphs 23 to 26 of its judgment that the Employment Tribunal were entitled to find that the workers were working throughout their shift. That conclusion is criticised in paragraphs 2(1)(a) of the grounds of appeal, a criticism renewed before us by Mr Epstein, as being inconsistent with the statement of agreed issues that was put before the Employment Tribunal to the effect that the staff "spend a proportion of their shifts not actively engaged in work but awake and required to answer telephone calls". That complaint is, however, unduly pedantic. It is plain that by their formulation of the factual position, the parties intended to use the concept of being "actively" engaged in work to refer to the actual answering of the telephone. The question is, however, whether they were nonetheless working when waiting to answer the telephone. I have to say that not only was it open to the Employment Tribunal and to the Employment Appeal Tribunal to find that the workers were working throughout their shift, but also, as an issue of the ordinary use of the English language, it seems to me self-evident on these facts that they were indeed so working. No one would say that an employee sitting at the employer's premises during the day waiting for phone calls was only working, in the sense of only being entitled to be remunerated, during the periods when he or she was actually on the phone. Exactly the same consideration seems to me to apply if the employer chooses to operate the very same service during the night-time, not by bringing the employees into his office (which would no doubt impose substantial overhead costs on the employer and lead to significant difficulties of recruitment), but by diverting calls from the central switchboard to employees sitting waiting at home. It was indeed as a continuation of the day-time service that the employer presented the night-time service to his employees and recruited them for that purpose. That is illustrated by the job description document that was shown to us, which starts by saying: "JOB PURPOSE To work as part of the part of BNA team, providing a continuing service to BNA clients and members after the branch offices have closed and over the weekend. to enhance BNA's reputation and maximise the business in a flexible caring manner." However, the main argument, raised against those findings, which seem to me at the very lowest entirely open to the Employment Tribunal applying to the facts its understanding and experience of industrial relations, was the argument developed before us by Mr Epstein that, as a matter of law, the Regulations made a distinction between work at the employer's work place and activities carried on - and I will use that expression neutrally for the moment - at the worker's own home. Therefore, the Employment Tribunal had erred in seeing a necessary continuation between the activities at the work place and the activities at the worker's home, and should not have found that the workers were working throughout the period when they were at home in the same way as they would be working throughout the period when they were at the employer's premises. As I have said, that objection could, in my judgement, only be based upon an objection of law in the face of the very strong implications of the facts that I have already endeavoured to set out; and the argument is, I fear, misconceived. It was based entirely on the construction of Regulation 15, which indeed draws a distinction between a worker being available at or near a place of work for the purpose of work, and that same situation when he is at his home, as the wording sets it out. But Regulation 15 only arises in a case where a worker is not in fact working, but is on call waiting to work. In this case, as we have seen, the Tribunal found as a fact that the workers were working throughout the period of their shift. Regulation 15 is therefore irrelevant to these facts; and, moreover, even if that were not the case, it is in my judgement impossible to construe out of Regulation 15 a rule that applies to the whole of these Regulations, that obliged a tribunal to make a different finding in respect of the nature of a person's activities with regard to work just because they were being carried on at the employee's place of residence. I therefore would reject the argument advanced to criticise the Tribunal's principal finding. So far so good. Further difficulties, however, arise in this case from Regulation 15 itself, and the roles it played in the argument and in the statement of issues. As I have already indicated, I find it extremely difficult to say that this Regulation is relevant to this case at all. Once the Tribunal had found that the employees were in fact working throughout their shift, Regulation 15 only applied thereafter to situations of a particular sort in addition to what can be properly characterised as work; and on the Tribunal's findings the situation that they were addressing was not a deemed piece of time work but an actual piece of time work. That indeed was the view of the Tribunal itself, because having been invited to look at certain aspects of Regulation 15, it said this at paragraphs 33 and 34 of its determination: "33. In the present case, the workers are paid to work at home and their place of work is at home. 34. We therefore conclude that the words in Regulation 15(1) of 'available at or near a place of work other than his home' are not relevant to the present situation." But both Tribunals were faced with the difficulty that the parties had agreed at all stages that Regulation 15(1) was indeed the governing provision in this case, and there is, and probably could not be, any cross-appeal as to the limitations on the extent of the employees' "work" that the Employment Appeal Tribunal drew, in the light of those submissions, from the terms of Regulation 15(1). It is however necessary to enter two caveats. First, I do not in this judgment decide anything as to the proper application of Regulation 15(1) in a case such as the present. Second, the difficulty that has been experienced in this case in interpreting Regulation 15(1) springs from what I would see as the artificiality of its applying to the present facts at all. Regulation 15(1) relates to workers who are, in colloquial terms, "on call". When a worker falls into that category, he has to be paid the minimum wage for his waiting hours, unless he is on call at home. I respectfully agree with the very clear analysis of the Employment Appeal Tribunal to that effect in paragraphs 28 to 30 of its judgment. However, if the worker is permitted to sleep when on call, the hours during which he is permitted to sleep and when he is not actually working do not count as the equivalent of time work. The Employment Tribunal held that these provisions apply in the present case, a holding that as we have seen has not been challenged. I cannot conceal my profound doubt as to that conclusion. Regulation 15(1) is arranged as a single provision. The exception that it contains, introduced by the words "except that", is indeed an exception: that is, it presupposes that the case is otherwise covered by the principal rule of the regulation. That principal rule, as we have seen, is confined to cases where the worker is on call other than at his home. So where, as in our case, the workers are asleep at home, they are not covered by the exclusion because they are not in any event covered by the rule from which they appear to be excluded. Having said all that, the alternative that is apparently contended for by the appellant, that the employees are only working when they are actually dealing with phone calls with all the periods spent waiting for calls excluded, would, in my view effectively make a mockery of the whole system of the minimum wage. The Employment Appeal Tribunal was asked to look at the Parliamentary debates in order to establish some sort of congruence between the present provisions and the Working Time Directive and Regulations. Mr Epstein showed good judgement in not pursuing that particular thread of his argument in this court. He did, however, say that the European Court of Justice decision on the Working Time Directive in SIMAP provided some guidance as to the proper approach to the concept of working hours in our present legislation. Quite apart from the different objectives of the different pieces of legislation, I do not agree with that submission. In SIMAP the doctors were on call but at home, a place where, on any view, they did no work at all. For those reasons, therefore, I would dismiss this appeal. MR JUSTICE NEUBERGER: For the reasons given by my Lord, Buxton LJ, Itoo would dismiss this appeal. LORD JUSTICE PETER GIBSON: I also agree. Order: Appeal dismissed with costs subject to detailed assessment unless otherwise agreed. References 02Thompson's Labour and European Law Review, http://www.thompsons.law.co.uk/ltext/dload/lelr0077.pdf 01Barnes Marsland , Bullintin Board - http://www.barnesmarsland.co.uk/employment/bulletinpage.htm 03Low Pay Commission;.www.lowpay.gov.uk/lowpay/report/rep01_01.shtml 1Employment Relations: Research Series No. http://www.csmb.unimo.it/adapt/bdoc/18_04/dti_1.pdf 15wNational Minimum Wage, "www.lowpay.gov.uk/lowpay/report/pdf/2006_Min_Wage.pdf" "www.womenandequalityunit.gov.uk/legislation/key_legislation_1003.doc" 16 Violence at Work, INDG 69 (rev) published by HSE in 2000 British Nursing Association v Inland Revenue (NMW Compliance Team) CA 2002 EWCA Civ 494, Court of Appeal on 26th March 2002, reported at [2003] ICR 19). Read More