An interesting employment law case that was taken through the Sheriff Court had its judgment issued on 20 September 2016. Michael Dawson v Carr Gomm  SC DUN 71 was raised as a small claim, rather than, as is the convention, in the Employment Tribunal.
Facts of the Case
The pursuer was employed by the defender as a support worker. His job role was to attend service users’ homes for the purpose of providing agreed support.
The pursuer in this case attended at the home of “JW” (the service user) who had an agreement with the Defender.
JW’s user agreement with the defender, allowed for him to receive 12 hours of support per day, between 9am and 9pm. The pursuer required to remain at JW’s house for a four or eight-hour shift and on completion of his shift. The defender’s written policies on hours of work and the WTR 1998 provide that employees were entitled to an unpaid break of thirty minutes in shifts in excess of six hours and that on-call hours spent at work counted towards the working week and for payment.
The defender advised the pursuer to take a thirty-minute break during those shifts but he required to remain in JW’s kitchen and could not leave the house. However, the pursuer was also still required to provide support to JW should a need arise. The difficulty was, in practice, JW was unwilling or unable to leave the kitchen and the pursuer was required to provide support during the break periods.
Between 9pm and 9am none of the defender’s employees were present in JW’s house. There was an alarm system installed because JW was subject to a sexual offences prevention order and the courts highlighted the alarm could have been set for half an hour during the day, enabling the pursuer to take his break out with the house. The defender was not allowing the pursuer to do this.
The Sheriff, found 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.
It was held that the whilst the pursuer was unable to accurately quantify just how many minutes of extra support he provided in the break throughout the previous two years and his evidence was vague in this respect, this did not ‘greatly matter’.
What was of relevance was that fact that, ‘If he was recognised as being on call during the break period, then he was still working and entitled under his contract to be paid, and to be paid for the whole period.’ It was held that this was the reality of the situation, which the defenders case failed to recognise.
Interestingly, the Sheriff highlighted that the employment tribunal would have been the preferred forum for determining the present dispute, however emphasised proceedings in the small claim court for the pursuer may have well been cheaper and are not subject to the more restrictive time limits applicable in the Tribunal. The Sheriff gave examples of how some complaints based on breach of contract can sometimes instead be brought under other more advantageous legislation in an Employment Tribunal. The downside here for the pursuer was that he could only succeed if he can establish a contractual, rather than statutory, entitlement to the payment he sought.
The fee for bringing a civil claim will initially depend on the value of the claim as opposed to the position in an Employment Tribunal, where fees are set according to the nature of the legal complaint, not the amount of compensation asked for. Given that it can be significantly cheaper for party litigants to bring low-value claims as a Small Claims action in the Sheriff Court, we could see a potential increase in similar judgements from the Sheriff Courts rather than the favoured forum.
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