[2016] SC DUN 71




In the Small Claim by













Dundee, 20 September 2016

The Sheriff, having resumed consideration of the cause, finds the pursuer entitled to payment from the defender in the sum of £338.13, together with expenses as assessed as a party litigant in a small claim, not to exceed £150.


Findings in Fact

[1]        The defender provides care and support services, in particular, to persons with mental health problems living independently in the community.   It is commissioned by local authorities for that purpose.  It enters into agreements with service users setting out the terms and conditions on which care and support is to be provided.  It employs persons to attend at service users’ homes for the purpose of providing the agreed support.

[2]        The pursuer was employed by the defender as a support worker in the period between May 2011 and March 2016.  His contract of employment is lodged as production 5.  The pursuer’s initial basic salary was £13,548, paid monthly in arrears.  His initial basic hours of work were specified as 22.5 hours per week, worked on a rota basis.    This later increased to 30 hours per week in around March 2015.  In the two year period to the end of his employment his average hourly rate was £7.75 per hour.

[3]        The pursuer’s contract provides under the heading “hours of work” that he might be “expected to work overtime for which no additional payment will be made, but you will be entitled to time off in lieu, at times to be agreed with your manager.”  It also provides that he might be required “to form part of the on call rota”.  In respect of this an additional payment rate of £13.52 “per on call period” is provided for, although the duration of the period is not specified.     

[4]        The defender has written policies on hours of work and the Working Time Regulations 1998, excerpts of which are lodged as productions 1 and 2 respectively.   These provide in particular that “all staff are entitled to an unpaid break of 30 minutes in a shift of more than 6 hours.”   They also provide that “on call hours will continue to treated as not counting towards the average working week when it is carried out not at the workplace…  Time spent at work if the on call is called in does count towards the working week and for payment.”  Reference is made to an unspecified “recent Scottish judgment” in relation to this distinction.

[5]        In the course of his employment with the defender the pursuer was required in particular to provide support to JW, a service user living at an address in Dundee.   JW has learning difficulties, paranoid schizophrenia, anxiety and depression, and is subject to a sexual offences prevention order.  In terms of his user agreement with the defender JW was entitled to 12 hours support per day, between 9am and 9pm, from a single support worker. 

[6]        For the purpose of providing this support the pursuer was required to attend and remain at JW’s house.   He was required to do so for a four or eight hour shift, either handing over to or relieving another worker so as to make up the 12 hours of support per day.  On at least one occasion every week for the last two years of his employment the pursuer was required to attend at JW’s house for an eight hour shift.

[7]        Pursuant to their above mentioned policy the pursuer was advised by the defender that he was entitled to take a 30 minute break in the course of his eight hour shifts at JW’s house.  However he was also required by the defender not to leave the house but to take that break in JW’s kitchen.   He was required to inform JW that he was going into the kitchen for this purpose and that he, JW, could not come in.  However the pursuer was also required by the defender to provide support to JW during his break should a need for it arise.  It was in any event understood by the defender that even if JW did not actively seek support from the pursuer during his break he nevertheless might derive comfort from the mere fact of knowing that the pursuer was still present in his house at this time, and that he was able to call on him for support if need be. 

[8]        Between 9pm and 9am none of the defender’s employees were present in JW’s house.  However there was an alarm, installed because JW was subject to a SOPO.   It would have been possible for this alarm to have also been set for half an hour during the day, thereby enabling the pursuer to take his break outwith the house.  The defender was not willing to allow the pursuer to do this however.

[9]        In practice, given in particular his paranoia, JW was often unable or unwilling to leave the pursuer alone in the kitchen during break periods, notwithstanding that he was asked to do so.   On these occasions the pursuer was required to respond to JW’s presence and concerns and to provide support to him as appropriate.

[10]      The pursuer was dissatisfied with the requirement that he take his breaks under the above conditions.   He felt that in reality he was working an eight hour shift without a break, and that he should be paid accordingly.  He sought advice from the Citizens Advice Bureau.  He raised the issue in 2015 with his manager, and the matter was discussed at a team meeting.   The pursuer was not offered time off in lieu or payment in respect of the relevant half hour break periods. 



[11]      In this small claim proof the pursuer claimed payment for certain half hour periods during which, although designated as unpaid breaks, he felt that he was still working.  He represented himself and gave oral evidence in support of his position.  He limited the claim to the last two year period of his employment with the defender, during which period he said that he worked at least one eight hour shift per week at JW’s house.   He calculated that he had therefore not been paid for 104 half hour break periods.  He said that his average hourly rate was £7.75.  Therefore his total claim was for £403 (104 times 7.75 divided by 2).   Although understandably the pursuer’s understanding of the legal position was limited, and he had a tendency to stray from the facts directly relevant to his own case, I found him to be basically credible and reliable, and was able to accept his evidence to the extent set out in the findings in fact above.

[12]      The defender was represented by a solicitor from a specialist employment law firm.   Evidence was led from Elizabeth Mackay, a human resources manager.   She did not dispute that the pursuer would have worked at least 104 eight hour shifts at JW’s house in the final two years of his employment.  His claimed average hourly rate was not disputed.   She confirmed that during an eight hour shift the pursuer was required to take his break in JW’s kitchen and was not permitted to leave the house.  She confirmed that it was the defender’s understanding that JW would derive some comfort and reassurance from knowing that the pursuer was still on the premises.  The defender’s position, as expressed by Mrs Mackay, was that if the pursuer was interrupted by JW during his break, he was expected to attend to JW for such time as was necessary.   This additional time would count as overtime, and the pursuer could then apply to his manager to have time off in lieu of this in terms of the contract.

[13]      The starting point is to recognise that this is, and can only be, a contractual claim.  The pursuer’s case has to be that he is entitled, on the facts found, and on a proper understanding of the express and implied terms of his contract of employment with the defender, to the sum of money which he has claimed.   That is all this court has jurisdiction to determine.    Had the pursuer brought proceedings in the Employment Tribunal, rather than the Sheriff Court, he might have had good grounds to argue that there had been a breach of regulation 12 of the Working Time Regulations 1998, and to seek compensation for this under regulation 30:  see Truslove v Scottish Ambulance Service [2014] ICR 1232 (I deduce that that this may be the ‘recent Scottish judgment’ referred to in the defender’s policy document in relation to ‘on call’ working).  The pursuer might also have had grounds to argue that there had been a breach of the National Minimum Wage Regulations 2015, and again, the Tribunal would have had the power to grant him a financial remedy in respect of that:  see regulation 32 and cf.  Whittlestone v BJP Home Support [2014] ICR 275 (a case concerning payment for travelling time and sleep over shifts in the home care sector).   While the Tribunal is clearly the preferable forum for determining the present dispute (cf. Driver v Air India Ltd [2011] IRLR 992 per Mummery LJ at paragraphs 124 – 126), proceedings in the small claim court for this pursuer may well now be cheaper, and are in any event not subject to the more restrictive time limits applicable in the Tribunal.   The downside for the pursuer is that he can only succeed if he can establish a contractual, rather than statutory, entitlement to the payment he seeks.

[14]      The pursuer’s contract with the defender, in my view, must be taken to be the contract document lodged as production 5 as read and understood together with the excerpts from the policy documents lodged as productions 1 and 2.   Taken together there is a recognition that time spent ‘on call’ at the workplace is working time, for which the employee is entitled to be paid.  A rate of payment is prescribed for an ‘on call period’, but this is of unspecified length, and so it is not possible for me to calculate an hourly rate for ‘on call’ work.   I think it reasonably to be inferred however that the rate will be less than that applicable to time spent carrying out normal, more onerous duties, but also that it will not fall below the national minimum wage.    I would also take from the documents however that there is a recognition that working time spent ‘on call’ is to be distinguished from ‘overtime’.  The former is recognised as appropriate for payment, additional to the specified contractual salary, while the latter attracts only time off in lieu of payment.

[15]      It seems to me that the defender’s position in this case fails to recognise the reality of the situation, which is not that the pursuer was having a half hour break, which might on occasion be interrupted requiring him to work overtime for a few minutes, but that he was on call, and therefore still working, throughout the whole of the half hour ‘break’ period.    He was required by the defender to remain in JW’s house throughout this period.  This was his workplace.  He was expected to respond to requests from JW for support should any be made.   The pursuer’s position was that in practice JW often required support during this period, but he was unable to accurately quantify just how many minutes of extra support he provided in the ‘break’ period over the last two years.  His evidence in this regard was too vague to enable a reliable finding to be made.  In my view however this does not greatly matter, because if he is recognised as being on call during the ‘break’ period, then he was working, entitled under his contract to be paid, and to be paid for the whole of the period.  The only remaining question is as to the rate of payment.

[16]      The pursuer’s claim covers the period March 2014 to March 2016.  For the 26 week period March 2014 to October 2014 the minimum wage was £6.31 per hour.  For the following 52 weeks to October 2015 it was £6.50 per hour.  For the following 26 weeks to March 2016 it was £6.70 per hour.  As I have said, I am prepared to infer from the terms of the contract that the rate of payment for ‘on call’ work would not fall below the national minimum wage, but the pursuer has failed to establish that he had any entitlement to more than this.  I will therefore hold that he is entitled to payment for 26 half hour periods @ £6.31 (£82.03), 52 such periods @ £6.50 (£169.00), and 26 such periods at £6.70 (£87.10).  This makes a total of £338.13, and I shall grant decree for payment of this sum.

[17]      The pursuer is entitled to his expenses, as a party litigant in a small claim.  Any claim for expenses will however be subject to the £150 restriction provided for by section 36B(2) of the Sheriff Court (Scotland) Act 1971 as read with SI 1988/1999, none of the exceptions in section 36B(3) being applicable.