Carter v Prestige Nursing Ltd (Working Time Regulations)

For a complaint under regulation 30(1) of the Working Time Regulations 1998, a worker must have exercised, attempted to exercise, requested, or complained of the denial of the relevant rest right, and the employer must then have refused permission. An employer's mere imposition of a working arrangement which does not provide the rest entitlement is not, without such a response, a refusal for this remedy.

A claim for unlawful deduction from wages under section 13 of the Employment Rights Act 1996 turns on the worker's contractual entitlement. A tribunal must first find the terms governing pay. Minimum-wage authorities cannot determine a contractual deduction claim without that finding.

Ms Carter was a live-in carer engaged by Prestige Nursing Ltd. She worked day-time hours at an agreed rate and remained at the service user's home overnight, where she could sleep but was available if required.

The Employment Tribunal upheld her claim for compensation for denied daily and weekly rest under regulations 10 and 11 of the Working Time Regulations 1998. It rejected her claim for unlawful deductions for night hours under section 23 of the Employment Rights Act 1996. Prestige appealed the rest-period award. Ms Carter appealed the dismissal of the wages claim.

The central questions were whether regulation 30 required a prior exercise of the rest rights and refusal by the employer, and whether the contractual entitlement to payment for night hours had been determined.

1. Both appeals were allowed. Prestige's appeal succeeded because Ms Carter had neither alleged nor proved that she had sought to exercise her rights to daily or weekly rest, or that Prestige had refused such an exercise. The award of £3,500 for breach of regulations 10 and 11 was therefore set aside.

2. Following Miles v Linkage Community Trust, regulation 30(1) requires two positive steps: the worker must exercise the right, and the employer must refuse permission. A refusal ordinarily connotes a response. It may respond to an attempt, request, or complaint, but does not include mere inadvertence to the statutory entitlement or the imposition of a work pattern without a prior exercise of the right.

3. The different wording of regulation 29(1), which concerns an employer's failure to comply, supported that construction. Although this interpretation could leave a gap in individual protection, that was insufficient reason to depart from Miles. MacCartney v Oversley House Management did not carry comparable weight because the point had not been argued. Scottish Ambulance Service v Truslove concerned the separate time-limit provision in regulation 30(2).

4. The EAT exceptionally permitted Prestige to raise the point of law for the first time on appeal. It was a discrete issue requiring no further factual inquiry and went to the statutory remedy itself. Both parties and the Tribunal had overlooked it.

5. Ms Carter's wages appeal also succeeded. Her claim was under section 13 of the Employment Rights Act 1996, not minimum-wage legislation. The Tribunal should first have found the actual contractual terms governing night pay. Without that finding, it could not decide whether the wages paid were less than those properly payable. The claim was remitted to a different Employment Judge for a fresh determination of the contractual terms and any variations.

• Employment Appeal Tribunal: Prestige's appeal against the rest-period award was allowed. Ms Carter's appeal against dismissal of the wages claim was allowed and remitted.
• Employment Tribunal, Bristol: By judgment dated 15 August 2011, the Tribunal upheld the regulations 10 and 11 rest-period claim and awarded £3,500, but dismissed the section 23 unlawful-deduction claim.