British Nursing Association v Inland Revenue

An employee may be working throughout a shift even when periods of active work are intermittent. A home-based employee engaged to maintain a continuous telephone service works while waiting to answer calls, where that availability is the service which the employer requires.

Regulation 15(1) of the National Minimum Wage Regulations 1999 concerns workers who are not actually working but are available on call. Its exclusion for availability at home does not create a general rule that work performed at home must be treated differently from work at the employer’s premises.

The British Nursing Association operated a continuous booking service for bank nurses. Its night-shift employees worked from home, receiving diverted calls and arranging nursing cover. They were paid by the shift, so entitlement to the national minimum wage depended on the working time attributable to each shift.

The Employment Tribunal found that the employees worked throughout their night shifts, although it excluded periods during which they were permitted to sleep. The Employment Appeal Tribunal upheld that decision. The employer appealed, contending that the employees worked only while dealing with calls and that regulation 15(1) of the National Minimum Wage Regulations 1999 required different treatment because they were at home.

The central issue was whether waiting at home to receive calls as part of the continuous service constituted actual time work.

1. Appeal dismissed unanimously. Buxton LJ delivered the leading judgment. Neuberger J and Peter Gibson LJ agreed.

2. The Employment Tribunal was entitled to find that the employees worked throughout their shifts. In ordinary language, a person employed to operate a telephone service works while waiting for calls, not merely while speaking on the telephone. The same principle applies where the employer continues its daytime service at night by diverting calls to employees at home. The availability of the service was what the employer required, irrespective of the number of calls received.

3. Regulation 15(1) of the National Minimum Wage Regulations 1999 was irrelevant to that principal finding. It supplements actual time work by treating certain periods of availability as time work where a worker is on call and waiting to work. These employees were found to be actually working throughout their shifts. The exclusion concerning availability at the worker’s home could not be converted into a general rule requiring tribunals to characterise home-based activity differently from identical activity at an employer’s premises.

4. Buxton LJ nevertheless addressed regulation 15(1) because the parties and both tribunals had treated it as governing the case. The principal rule covers an on-call worker available at or near a workplace other than the worker’s home. The sleep exception presupposes that the worker otherwise falls within that principal rule. Buxton LJ therefore expressed profound doubt that the exception applied to workers sleeping at home, but expressly declined to decide the proper application of regulation 15(1) on these facts.

5. The procedural course made it impossible to remove the Employment Tribunal’s limitation excluding hours during which the employees were permitted to sleep. Whether the employer could prove any such periods remained for later determination. Treating the employees as working only while handling calls would undermine the national minimum wage scheme.

1. Court of Appeal: The employer’s appeal was dismissed unanimously, with costs subject to detailed assessment unless agreed.

2. Employment Appeal Tribunal: The tribunal upheld the Employment Tribunal’s decision that the employees were working throughout their shifts, subject to the exclusion of permitted sleeping time.

3. Employment Tribunal: The tribunal found that the employees worked throughout their night shifts while awake and awaiting calls at home, but that time work did not include periods during which they were asleep.