Edwards & Anor v Encirc Ltd (Working Time Regulations)

For the purposes of Regulation 2(1)(a) of the Working Time Regulations 1998, a period is working time only if the worker is working, at the employer’s disposal, and carrying out activities or duties. The definition must nevertheless be construed purposively in the light of the health-and-safety aim of the Working Time Directive.

A worker may be at the employer’s disposal without being subject to the employer’s direct control throughout the period. It may suffice that the employer requires attendance at a particular place and time, and requires the worker to be ready to undertake activity for the employer’s benefit. Activities or duties are not confined to normal contractual duties. Representational activities may qualify where they arise from the employment relationship, benefit the employer in a broad sense, and occur with the employer’s knowledge and approval.

The Claimants were night-shift employees who respectively acted as a health and safety representative and a trade union shop steward. Each attended a workplace representative meeting outside his scheduled shift. The Respondent paid them for the meetings and permitted a late start to the following night shift, but did not allow the full eleven-hour daily rest period.

The Liverpool Employment Tribunal dismissed claims under the Working Time Regulations 1998 and for trade-union detriment. It held that the meetings were not working time because the Claimants were neither at the Respondent’s disposal nor carrying out the duties for which they were employed. The Claimants appealed. The central issue was whether the meetings fell within Regulation 2(1)(a).

1. Appeal allowed. The Employment Tribunal adopted an unduly restrictive construction of Regulation 2(1)(a) of the Working Time Regulations 1998. All three statutory elements remain conjunctive, but they must be applied consistently with the protective purpose of the Working Time Directive.

2. The Tribunal had permissibly found that the Claimants were working. Their representative functions stemmed from the employment relationship and were, in a broad sense, for the Respondent’s benefit. The Employment Appeal Tribunal applied the purposive approach illustrated by the on-call authorities, which treats the statutory characteristics of working time as the relevant inquiry.

3. The requirement that a worker be at the employer’s disposal does not require direct and specific control over the manner in which the worker performs the activity. It can be met where the employer requires attendance at a specified place and time, and the worker holds himself ready to perform activity for the employer’s benefit. The Tribunal failed to engage with the Respondent’s arrangements for the meetings, including its control over their timing, place and the Claimants’ late starts.

4. The expression carrying out his activities or duties is not confined to the worker’s contractual or normal production duties. It can include activities which benefit the employer, arise from the employment relationship, and are done with the employer’s knowledge and approval. The Tribunal’s contractual approach was therefore erroneous.

5. The erroneous working-time conclusion also invalidated the dismissal of the detriment claims under section 146 of the Trade Union and Labour Relations (Consolidation) Act 1992. The Employment Appeal Tribunal did not determine the alternative Recognition Agreement case or the alternative detriment case. As the factual basis concerning the arrangements for the meetings might remain disputed, the matter was remitted to the same Employment Tribunal for reconsideration.

• Employment Appeal Tribunal: appeal allowed and remitted to the same Employment Tribunal: [2015] UKEAT 0367_14_2302.
• Liverpool Employment Tribunal: dismissed the claims under the Working Time Regulations 1998 and the trade-union detriment claims. Its judgment was sent to the parties on 7 July 2014.