Understand the basics of the Working Time Regulations in the UK, working hours trends, holidays and special leave.
Here we list a selection of key cases, reported since 2010, on working time, providing a summary of the decision and implications for employers.
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Mencap v Tomlinson-Blake and Shannon v Rampersad (Conjoined cases)|SC | 19 March 2021
 UKSC 8
Issue: National Minimum Wage - sleep-in shifts
Case1: A care support worker provided care to two vulnerable adults at home, working on day and sleep-in shifts. During sleep ins carers remained on the premises and intervened if necessary. The carer had only been required to intervene on six occasions over a 16-month period.
The carer claimed that the whole of the sleep-in shift, including time spent asleep was working time, known as ‘time work’ for the purpose of the National Minimum Wage Regulations (‘NMWR”).
Case 2: An on call night assistant at a residential care home lived in for free and received a small weekly payment. He was required to remain on the premises and provide assistance, if required, to the night care worker on duty. In practice, he was very rarely required to provide any assistance. The assistant argued that the time spent on call amounted to “salaried hours work” under the NMWR.
The Supreme Court held that sleep-in shift time does not qualify as work which dismisses the claims of both care assistants. The employers in each case were not required to pay the NMW for the sleep-in shift. The decision clarifies the legal position as there appears to be a distinction between:
- being available for work; and
- actively working.
Workers on sleep-in shifts can have hours counted for NMW purposes only where they are, and are required to be, awake for the purpose of performing specific activities.
Implications for employers.
This is a highly significant decision for employers in the care industry. Previously employers thought they may have to pay retrospective pay to sleep-in staff to comply with the NMW. Earlier case law was contradictory (see cases such as Burrow Down Support v Rossiter, 2008, Scottbridge Construction v Wright, 2003, and British Nursing v HMRC, 2002).
- do not have to pay staff the NMW for the entirety of a sleep-in shift
- do not have an increased wage bill going forward
- can distinguish between whether carers are available for work or actively working
- can count hours for NMW purposes if they are awake for the purpose of performing some specific activity and are required to do this.
Many employers had already decided to pay staff the NMW for the entirety of a sleep-in shift because of the risk of claims for back pay. Once employees’ terms and conditions have been agreed with payment for sleep-ins, obviously the payment can only be taken away from current employees with the agreement of the employee.
The potential cost to the care sector was that workers could bring actions for historic back payment of salary. The potential overall sector cost was hundreds of millions which could potentially have threatened some providers’ future viability if they were obliged to pay their staff the NMW for the whole of sleep-in shifts.
The Supreme Court’s decision may also have repercussions outside the care sector as a clear distinction is drawn between ‘actual work’ and ‘availability for work’. This guides employers and employees as to whether any worker carrying out a sleep-in shift is entitled to be paid the NMW. The government’s Social Care Compliance Scheme from 2017 enabled any care home employers to make back payments of what they owed in unpaid NMW voluntarily instead of under an enforcement regime. The employers that have already made payments may be entitled to repayment of any sums paid out. HMRC guidance and practices will be amended in due course.
Flowers and others v East of England Ambulance Trust | EAT | July 2018
Issue: Working time - overtime and holiday pay
A group of NHS employees claimed the calculation of their holiday pay should take two types of overtime into account:
- Non-guaranteed overtime, where a task must be completed by the same employee after the end of their normal shift.
- Voluntary overtime, where an employee volunteers to work some extra shifts.
The issue was whether one or both types of overtime should be included as part of holiday pay under the under the Working Time Regulations.
The EAT ruled that both types of overtime (non-guaranteed and voluntary) should be included in the calculation of holiday pay for NHS staff under the NHS Terms and Conditions.
The purpose of the relevant NHS clause was that holiday pay was based on what the employee would have been paid if he or she had been at work. Both types of overtime should be included in calculating holiday pay under the contract.
The case was sent back to the ET to assess the correct payment for each employee, but the NHS has applied for permission to appeal to the Court of Appeal. At a financially difficult time for NHS Trusts, this decision has expensive implications which may be a factor in the decision to seek leave to appeal.
Implications for employers
This is the latest in a series of cases about what should be included in the calculation of holiday pay. Employers will know that the basic principle is that holiday pay should be based on normal remuneration.
This is sometimes hard to work out in practice. It is not clear if all variable elements such as bonuses, commission and overtime should be included in the correct calculation of holiday pay under the Working Time Regulations.
The cases are following the approach taken in previous judgments, such as that in Dudley Metropolitan Borough Council v Willetts (2017), which is that overtime should be included in holiday pay calculations if it is regular and settled enough to constitute normal remuneration.
Employers, therefore, need to assess if overtime is sufficiently regular for each individual employee. Overtime payments should be included in calculating holiday pay if they are paid over a sufficient period of time. This is rather unsatisfactory, as the outcome will depend on the facts of each case but, in principle, regular overtime payments should form part of holiday pay calculations. The type of overtime being worked does not seem to be critical.
This case also seems to go further as it implies that any voluntary overtime worked could be included even if it is less regular. If so, this is wide-ranging and could be very expensive for larger employers, especially the NHS.
Ville de Nivelles v Matzak | ECJ | February 2018
Issue: Working time -on call workers
A firefighter in Belgium had strict restrictions imposed by his employer regarding his on call time.
Under the terms of his contract, he had to live no more than eight minutes travel from the fire station and, when on stand-by, he had to remain at all times within the eight minutes travel distance. So although he could be at home on call he had very significantly restricted opportunities for going anywhere and doing anything else. He claimed pay for the hours of stand-by time.
The ECJ had to decide under the Working Time Directive if the stand by time was working time. The Court decided this time must be regarded as working time, even though the worker was at home. Although the firefighter may be home, the geographical and time constraints resulting from the requirement to reach the station within eight minutes, limited the opportunities for personal or social interests.Because of these constraints the fire fighter was working when on-call.
Implications for employers
This case gives important guidance for U.K. employers about when on-call time will count as working time.Employers with on call systems struggle to understand exactly what counts as working time. This case helps identify where the line should be drawn. An employee at home is still working if they must respond to the employer immediately and if they must be within a short distance of the workplace.
The situation is different if workers perform stand-by duties which require them to be permanently accessible without being required to be present at (or near) the place of work. A worker who might be contacted, but who can otherwise go and do what they wish, is not working unless they are called.
Employers have many different arrangements but the following key points help identify working time:
- working time and a rest period are not the same and stand-by time must be one thing or the other;
- intense work and output are not necessary for working time;
- required physical presence and availability of the worker with a view to providing services is working time; and
- an obligation to be physically present at a place decided by the employer and to be available to work immediately is still working time.
If workers must be contactable and are therefore at the disposal of the employer but can manage their own time with no other constraints and can pursue their own interests then this may not be working time.Only the time linked to the actual provision of services is then working time.
This case is consistent with previous UK cases about when on-call workers will be working. Employers must remember that working time is not approached in the same way for national minimum wage claims. The legal tests in each area are different and it is possible for hours on call to count as time for working out the total hours worked, but not for deciding the rate the worker should be paid.
Santos Gomez v Higher Level Care Ltd | Employment Appeal Tribunal | 18 May 2016
(unreported, UKEAT/0017/16 18 May 2016, EAT)
Issue: failure to provide rest breaks and injury to feelings
An employee working for an employer who provided care for vulnerable young people won her case that the employer failed to provide her with the 20 minute rest breaks required by the Working Time Regulations 1998 (WTR). She won compensation of £1,220 in respect of financial loss, but was she entitled to compensation for injury to feelings too?
The Employment Appeal Tribunal held that she was not entitled to an award for injury to feelings as well. Claims for failure to allow rest breaks under the WTR are like claims for breach of contract which do not include compensation for injury to feelings. Compensation for injury to feelings is usually linked to anti-discrimination statutes or personal injury claims.
Implications for employers
Employers should ensure that employees and workers are provided with the necessary breaks required under the WTR.
Rest breaks should be 20 minutes if working for more than 6 hours per day.
Compensation for injury to feelings is available in certain types of employment claims; mostly discrimination claims or those with a personal injury element. It is not available for unfair dismissal or breach of contract claims.
Employers can face tribunal claims if a breach of rest break entitlements has occurred.
The remedies for breach of rest break provisions include a declaration that the breach occurred and compensation which is just and equitable in all the circumstances.
Compensation includes any normal financial loss sustained which is attributable to the lost rest break, but does not include any injury to feelings aspect of compensation.
If physical or psychological injuries result from a breach of the WTR, employers may still be exposed to tort claims in the civil courts for failure to honour a duty of care towards the employee concerned.
Federación de Servicios Privados del Sindicato Comisiones Obreras v Tyco Integrated Security SL and another | European Court of Justice | 10 Sep 2015
(unreported, Case C‑266/14 10 September 2015, ECJ)
Issue: Whether travelling to work is considered working time
This Spanish case involved technicians who, following the closure of regional offices, were assigned to a central office in Madrid and travelled to particular provinces in Spain installing and maintaining security systems. As a result of the decision to close the regional offices the technicians no longer attended an office at the start and end of each day but travelled directly to and from customers’ premises. Issues arose about what counted as working time.
The employer said that the first journey of the day (from home to the first appointment) and the last journey of the day (from the last a appointment to home) were not working time.
The technicians brought a claim against the employer saying that the time spent travelling at the beginning and end of the day by a worker constituted ‘working time’ and was not a ‘rest period’.
The European Court of Justice (ECJ) followed the Advocate General’s opinion and decided that workers who are not assigned a fixed place of work may count the time spent travelling from their home to their first appointment and the time spent travelling home from their last appointment as working time for the purposes of the Working Time Directive.
The Directive does not provide an intermediate category between ‘working time' and ‘rest’ and the court felt that the following three criteria for determining 'working time’ were met:
- Being at the workplace.
- Being at the disposal of the employer.
- Carrying out the activity or duties.
The time spent travelling to and from the workers' homes during the first and last journeys of the day was therefore working time rather than simply a rest break because the workers cannot use that time freely to pursue their own interests.
Implications for employers
- Although this decision relates to a Spanish case it concerns the EU Working Time Directive.
- The Working Time Regulations 1998 implement the same Directive in the UK.
- The Working Time Regulations 1998 do not deal with travel to and from places of work or between places of work.
- Following this case time spent travelling to and from home to certain jobs during the first and last journeys of the day may be working time, but only for certain workers with no habitual place of work.
- Non–statutory guidance (available on Gov.uk) suggests that normal travel to and from work and travelling outside normal working hours is not working time.
- Time spent travelling by workers who have to travel as part of their job, for example travelling sales representatives, should be considered as working time.
- Employers should note that just because time counts as working time for the purposes of assessing the number of hours worked, this does not necessarily mean that time should be paid.
- Those workers who have no fixed work place and a large territory may clock up more working time by their travelling to and from work.
- Employers may consider scheduling early and late appointments at sites close to workers’ homes.
- This decision may have an impact on employers that use peripatetic workers, such as the care sector and these employers should carefully review working practices to ensure overall working time and rest breaks are adequate and do not breach the working time legislation.
- More employers may use clauses to opt out of the Working Time Directive 48-hour working week as opt-outs are still permitted in the UK.
Truslove v Scottish Ambulance Service | Employment Appeal Tribunal | 8 Apr 2014
(unreported, EATS/0053/13 8 April 2014, EAT)
Issue: On-call working
Two ambulance paramedics were sometimes required to provide nightly relief cover at different ambulance stations, away from their home base. As the paramedics all had to meet a target time of three minutes within which to respond to a call they were obliged to stay at accommodation of their choice within a three mile radius of the other station. The paramedics claimed that this time spent on call counted as working time and so they were entitled to a rest period according to the Working Time Regulations.
The Employment Appeal Tribunal (EAT) held that the employment tribunal had been wrong to find that the paramedics were at rest while on call. The EAT focused on whether the employee was on call where the employer required that employee to be. The EAT held that as the paramedics lacked the freedom to be anywhere other than within a three mile radius of the station their on call time was working time.
Implications for employers
- Employers must ensure all workers are allowed to take their minimum daily rest period of 11 hours' uninterrupted rest per day, or an equivalent period of compensatory rest.
- Workers must also have a rest break of 20 minutes when a day's working time is more than 6 hours.
- On call workers may have longer periods of ‘working time’ than employers may think as numerous cases have widened the scope of on call time.
- Whether time is rest time and not working time depends on the quality of rest the worker gets can get. If the worker cannot ‘unshackle himself from the rigours of the employer’s control’ all the time on call will be classed as working time.
- Emergency or 24 hour service workers will therefore probably be on working time rather than rest time in many cases.
- The problem is that there is either working time or rest time, but there is no hybrid third category. Over six years ago the EU proposed a third category, the ‘inactive’ part of on call time, which would only be treated as working time if it was agreed to do so. These proposals were not implemented.
- Until the law changes employers must ensure that those employees who are restricted while they are on call have proper rest periods in relation to the entire on call period.
Arriva South London Ltd v Nicolaou | Employment Tribunal | 21 Dec 2011
(unreported, EAT//0293/11 21 December 2011)
Issue: Working time opt-out agreements
A bus driver claimed he had been subject to a detriment for refusing to sign an opt-out agreement from the Working Time Regulations 1998 (WTR). He said the employer had placed a blanket ban on drivers from earning overtime and working on rest days if they had not opted out of the 48 hour limit on the working week. He had therefore been refused working overtime on his rest days.
The Employment Appeal Tribunal (EAT) held that the employee lost his claim and the policy adopted by the employers was reasonable for them to comply with their statutory duty under the WTR. They had not set out to penalise the driver for not opting-out. The EAT said there was a conflict between an employer’s duty under WTR and the protection against suffering a detriment.
Implications for employers
- The WTR implement the European Working Time Directive which sets a limit of 48 hours work for each seven days of work over the relevant reference period. In the WTR the reference period is usually 17 weeks.
- Many employers ask workers to opt-out of the 48 hour working week as the law currently allows employers to do this.
- An employer cannot force a worker to sign an opt-out.
- Employees can always opt back in to the WTR by giving written notice (of up to a maximum period of three months).
- Employers must not subject employees to any detriment if they refuse to opt-out.
- If an employee has opted out and the employer then refuses to let that person work overtime, this is not a legal’ detriment’ to that employee.
Hughes v Corps of Commissionaires Management (No 2) | Court of Appeal | 8 Sep 2011
 IRLR 915, CA
Issue: Whether on-call time is working time
A security guard was employed with two other security guards (or commissionaires) to provide 24 hour security to a particular client. Each guard worked a 12 hour shift, so that on any given day, one guard was working the day shift, one was working the night shift and the other was having a rest day.
The guards could take rest breaks in the kitchen area, but while on a break they were effectively on call because they left a sign on reception saying how they could be contacted if necessary. The guards were not therefore guaranteed uninterrupted rests. They could choose when to take their breaks and if interrupted by visitors to the site they could start their break from the beginning again. Sometimes, especially at night, they would in fact have a complete uninterrupted break, although it was never clear in advance that this would happen.
The guard complained that he was not receiving proper rest time or compensatory rest under Regulation 12 of the Working Time Regulations 1998 (WTR).
The Court of Appeal held that because the guard could start his rest break again if it was interrupted, he was given ‘compensatory rest’ under the WTR. In reality the period of rest could be significant if the break started again after an interruption. This was better than giving an additional break on a later shift as envisaged in a previous, similar case (Gallagher and others v Alpha Catering Services Ltd (t/a Alpha Flight Services)  IRLR 102 CA).
Implications for employers
- Employers must ensure that, where possible, workers are given the rest breaks to which they are entitled to under the Working Time Regulations 1998.
- Employers must give workers rest breaks if their daily working time is more than six hours. (See Regulation 12(1) of the Working Time Regulations 1998).
- The uninterrupted rest period should be at least 20 minutes which the worker can spend away from their workstation (unless there is a collective agreement to the contrary).
- Some employers may be required to work during a rest break if they fall within one of the numerous exceptions concerning rest breaks. These exceptions include cases where the worker's place of residence and place of work are distant from one another, the worker is engaged in ‘security and surveillance activities requiring a permanent presence’, or the worker's activities involve the need for continuity of service or production.
- If a worker is required to work during a period that should have been a rest break, employers should then allow the worker to take an equivalent period of compensatory rest.
- As long as an employer provides compensatory rest, it does not need the same qualities as the normal rest break. However, employers must make the period as close as possible to a rest break (for example, by allowing the worker to restart the rest break if interrupted).
Landeshauptstadt Kiel v Jaeger | ECJ | 2003
 IRLR 804
Issue: Working time: On call time
The case concerned the definition of doctors' working time. A hospital doctor was on-call a number of times each month. Sometimes he stayed at the clinic in a staff bedroom at the hospital. He would be called upon to work as need arose. Did the whole period at the hospital count as working time?
The European Court of Justice confirmed that on-call duty, performed by doctors who were required to be physically present in the hospital and who were permitted to rest or sleep in rooms provided during periods when their services were not required, constituted working time in its entirety.
This is the case, even where the person concerned is permitted to rest during the period when services are not required. Periods when the doctor was on-call but not working should not be treated as rest periods. Compensatory rest periods must immediately follow the periods worked.
Implications for employers
This SIMAP and Jaeger cases are not limited to doctors working on-call, but also have implications for others, for example, firefighters and teachers.
The entire period of on-call duty of an employee at a hospital is considered working time, so even if the employee is able to sleep during these periods it is working time and cannot count as a rest period.
This has significant consequences for employers’ staffing levels. To protect the health and safety of workers there is a maximum 48-hour working week and mandatory rest periods every 24-hours.
All the time spent on call counts as working time if the employee is required to be present at the workplace. However the national minimum wage provisions may not apply to all of this time.
The greater the restrictions are that are placed upon employees in terms of where they can be, then the more likely it is that they will be found to be working for the purposes of the Working Time Regulations.
Workers can agree to opt out of the 48-hour weekly working time limit, but consent must be given on an individual basis.
SIMAP v Conselleria de Sanidad y Consumo de la Generalidad Valenciana | ECJ | 2000
 IRLR 845
Issue: Working time: On call time
The case concerned the working hours of doctors in Spain. The case was brought by SIMAP, a union representing Spanish doctors. There were a number of important issues on the scope and application of working time rules which had implications for workers throughout Europe, including the UK. The key issue was whether time spent by the doctors on-call, either at medical centres or under a call system was working time. Should on call time be included in the calculation of working hours for the purposes of the 48 hour maximum working week?
In essence, the ECJ ruled that time spent on call by the doctors must be regarded as ‘working time’ where their attendance at the health centre was required. The time spent on-call by doctors must be regarded in its entirety as working time and, where appropriate as overtime if they were required to be at the health centre. If they merely had to be contactable without having to be physically present when on-call, only the time linked to the actual provision of primary health care services should be regarded as "working time".
The fact that workers are obliged to be present and available at the workplace with a view to providing their professional services is sufficient.
Implications for employers
This SIMAP case is the leading case which decided that only time linked to the actual provision of services should be regarded as working time. Employers now know that:
- the key distinction is between on-call time when a worker has to wait on site, and on-call time when the worker has freedom to pursue leisure activities away from the workplace;
- time spent on call counts as “working time” if an employee is required to be present at the workplace – not when he or she is merely contactable.
- workers can agree to opt out of the 48-hour weekly working time limit, but consent must be given on an individual basis.
The UK has always remained separate from many other EU member states by enabling employers to seek agreement from workers to opt out of the 48-hour maximum working week anyway. This case confirmed that consent to an opt-out must be given by workers individually and not by trade union representatives in a collective agreement.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.