David J P Hay

Appeal success a “significant victory for workers’ rights”


The decision of the Employment Appeal Tribunal in the case of Truslove and Wood v Scottish Ambulance Service was recently published on its website.

The case involved two paramedics in Grampian who, on occasion, were required to provide on-call overnight cover at remote ambulance stations in Dufftown and Tomintoul.  When they did so, they were required to stay within a 3 mile radius of the remote station (usually at a B&B) and expected to mobilise to any call-out within 3 minutes.  The question: was this time spent on-call working time, or rest time?  If it were working time then Mr Truslove and Ms Wood were not being provided with sufficient rest time between shifts, as the periods of on-call night duty would follow on from a full day shift.

With the assistance of their trade union they took their case to the Aberdeen Employment Tribunal and instructed Westwater Advocates’ David Hay.  After a 2 day hearing they were unsuccessful in persuading the tribunal that these on–call periods were working time.  David gave advice on, and thereafter drafted grounds for and appeared at, an appeal to the Employment Appeal Tribunal.  The President of the Employment Appeal Tribunal, Mr Justice Langstaff, allowed the appeal and found in favour of Mr Truslove and Ms Wood.  Langstaff P accepted the arguments put forward that the Employment Tribunal did not take the correct approach in determining whether time was either ‘work’ or ‘rest’ and had applied a test of near confinement which was not correct.  At paragraph [32] it was said:

“…the focus must be on the distinction between rest and work: on the approach taken in Jaeger, this concerns whether the place at which an employee is required to be present is or is not determined by the employer.  The answer in the present case cannot depend upon whether, within at least narrow limits, the employee was free to move a few hundred yards or even a couple of miles from that base.  He had to be where he was.  He could not be at home.  He could not therefore enjoy the quality of rest which he was entitled to have.”

The decision has been hailed by Unite the Union as a “significant victory for workers’ rights”, and as a “milestone victory” by Neil Findlay, Scottish Labour Party’s spokesman for health.

Westwater Advocates’ David Hay said: “This was a fascinating case on how the Working Time Regulations should be applied to situations specific to rural areas of the country, where there are challenges in providing emergency cover over a wide geographical area.  I’m delighted to have been able to secure a positive outcome for Mr Truslove and Ms Wood, and their colleagues who will be able to benefit from the terms of this decision.  It is also another example of domestic courts bringing to bear a purposive approach from European legislation when interpreting UK legislation, a hot topic at the moment in employment law.”