Prestige Nursing Ltd v Carter (Working Time Regulations)

Under regulation 30(1) of the Working Time Regulations 1998, a complaint concerning daily or weekly rest requires an actual refusal by the employer to permit the worker to exercise the relevant right. A worker must first attempt, request or complain in a way to which the employer can respond. An unlawful working pattern alone does not establish that statutory remedy.

A claim for unlawful deductions under section 13 of the Employment Rights Act 1996 depends on the worker's contractual entitlement. A tribunal must determine the contractual terms governing payment before deciding whether a shortfall is an unauthorised deduction. National minimum wage principles do not replace that contractual inquiry where no minimum-wage claim is advanced.

Ms Carter was a live-in carer engaged by Prestige Nursing Ltd. She worked daytime hours at an hourly rate and was required to remain at the service user's home overnight, when she could sleep but was available if required.

The Employment Tribunal upheld her claims for daily and weekly rest under regulations 10 and 11 of the Working Time Regulations 1998, awarding £3,500. It dismissed her claim under section 23 of the Employment Rights Act 1996 for deductions from wages in respect of night hours.

Prestige appealed the rest-period award, contending that Ms Carter had not sought to exercise her rights or been refused permission. Ms Carter appealed the dismissal of her wages claim. The central issues were whether regulation 30 required an actual refusal, and whether her contractual entitlement to payment for night hours had been determined.

1. Both appeals were allowed. Prestige's appeal succeeded and the £3,500 award for daily and weekly rest was set aside. Ms Carter's wages appeal succeeded to the extent that the dismissal was set aside and remitted to a different Employment Judge.

2. Regulation 30(1) of the Working Time Regulations 1998 requires two positive steps: exercise of the right by the worker, and an employer's refusal to permit it. Following Miles v Linkage Community Trust, the word “refused” ordinarily denotes a response to an attempt, request or complaint. It does not include mere inadvertence to the statutory right or simply organising work in a way that prevents rest. Ms Carter accepted that, before presenting her claim, she had neither requested nor attempted to exercise the rights. Her complaint could therefore not succeed.

3. The Tribunal exercised its exceptional discretion to permit Prestige to raise that point for the first time on appeal. It was a discrete point of law requiring no further factual inquiry. It went to the statutory remedy itself, had been missed by both parties and the Tribunal, and leaving the award intact would have conflicted with Miles.

4. The wages claim was brought under section 13 of the Employment Rights Act 1996, not under the minimum-wage legislation. The necessary starting point was the actual contractual terms between the parties about night payment. The Employment Judge had instead adopted national-minimum-wage reasoning without finding those terms. The analogy in Anderson v Jarvis Hotels could assist only after identifying the contractual term whose meaning was in issue.

5. As the required contractual findings could not be made by the Appeal Tribunal, the wages claim was remitted for a fresh hearing before a different Employment Judge. The parties were directed in substance to focus their evidence on the contractual terms governing payment.

• Employment Appeal Tribunal: Prestige's appeal against the rest-period award was allowed. Ms Carter's appeal against dismissal of the unlawful-deductions claim was allowed and remitted.
• Employment Tribunal, Bristol: Judgment dated 15 August 2011 upheld the rest-period claim under regulations 10 and 11 of the Working Time Regulations 1998 and dismissed the wages claim under section 23 of the Employment Rights Act 1996.