What does “being at the employer’s disposal” actually mean?
This case concerns two employees who were night workers and Trade Union Representatives. One attended a health and safety meeting with management and the other a Trade Union meeting to discuss a pay increase offer from management. They were paid for the time spent at these meetings. They claimed that this time amounted to working time entitling them to a rest break of 11 hours between their meetings and the start of their next shift.
The Employment Tribunal considered that they were working but were not at the employer’s disposal because they were not available to carry out work required by the employer and they were not carrying out the employer’s duties. The Tribunal considered that the ability to carry out their duties was what was meant when considering whether they were “at the employer’s disposal”.
This was appealed to the EAT which allowed the appeal on the basis that the Tribunal had adopted what it described as an “unduly restrictive” approach. The EAT held that being at the employer’s disposal did not necessarily require them to be under the control and direction of the employer in terms of carrying out specific duties or even generally. It was sufficient that the employer required them to be in a specific place and be ready to work at a specified time for the employer’s benefit. In this case therefore they were considered to be at the employer’s disposal in that they were required to come into the workplace to attend these meetings, which they had been requested to attend by the employer, and could not therefore spend what would otherwise have been their rest time however they chose.
The EAT also held that a worker can be regarded as carrying out relevant activities if they were undertaking activities which were at least partly for the employer’s benefit and done with the employer’s knowledge and in a manner described by the employer, however broad this may be.
This may well have an impact on the much discussed issue of travel time - whether and in what circumstances this counts as working time, and whether or not the employer or worker is at the employer’s disposal.
This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.
For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.