Decision : Not upheld
Decision date : 16 Nov 2015
The Ombudsman's final decision:
Summary: The Council investigated and took appropriate enforcement action when the complainant reported a breach of the working time directions by his former employer. The Council investigated his complaint about this without fault.
- Mr Z complains the Council:
- failed to properly investigate and take appropriate enforcement action when he reported a breach of the working time directions by his former employer, and
- failed to properly investigate his complaint about this.
- Mr Z says his health suffered because of the long hours. He considers the Council’s warning to the club was insufficient to deter the club asking employees to work long hours again.
The Ombudsman’s role and powers
- The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. The Ombudsman cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. She must consider whether there was fault in the way the Council reached the decision. (Local Government Act 1974, section 34(3))
How I considered this complaint
- I considered Mr Z’s complaint and the information he provided. I considered information the Council provided and the Health and Safety Executive website. I gave the Council and Mr Z the opportunity to comment on my draft decision.
What I found
- Employers must safeguard the health and safety of their employees. (Health and Safety at Work Act 1974). Employers must not require employees to work more than 48 hours a week averaged over a 17 week period. Employers must keep records that show the weekly working time limit is complied with (Working Time Regulations 1998 as amended).
- The European Court of Justice ruled an employee is working (and not on a rest break) if he is on-call at his employer's premises. (SIMAP v Valenciana 2001 and Landeshaupstadt Kiel v Jaeger, 2003)
- The Council investigates concerns about workplace safety in pubs and clubs. (Health and Safety Enforcing Authority Regulations 1998) Enforcing officers can enter any workplace to investigate breaches of health and safety legislation. They can issue improvement notices if appropriate. Under its enforcement policy the Council explores all options to enable an employer to comply without undue expense.
- The department’s policy lists what the Council considers when it decides whether to take formal action. The list includes: how serious the matter is, the previous history of the potential defendant, the effect on third parties, the quality of the evidence, the potential defendant’s explanations and attitude, the public interest and any service specific requirements. The policy gives choices for enforcement including written warnings. The policy for improvement notices says officers can only use a notice after an inspection. If an officer finds a breach he should not usually considered a notice as the first option. The policy says the Council produces health and safety booklets for small businesses.
- The Council delegates legislative powers to officers. The Council authorised Officer A to make decisions on health and safety matters.
- Mr Z worked as the manager of a sports and social club. He lived in an upstairs flat provided by the club. He held the club’s liquor licence. He decided the weekly rota for staffing at the club. In July 2013 the assistant manager left and the club did not replace him. Between October 2013 and January 2014 Mr Z kept a diary of his working hours. The club asked him to do so because he considered he had worked seven days a week and exceeded the 48 hours a week maximum under the working time regulations. In his calculations Mr Z included standby hours where he was at home but on call. Mr Z did not record hours he worked when he was on standby. In November the club had many functions. Mr Z asked the club to give him extra pay as he had worked long hours. In January 2014 the club appointed a relief manager to help Mr Z. Mr Z no longer worked for the club from February 2014. The club paid Mr Z a contribution towards extra hours.
- Mr Z continued to live in the flat until March. He complained to the Council about mould and damp there. A housing standards officer visited, decided mould growth was not significant but found a broken bathroom extractor. He asked the club to fix the extractor and advised Mr Z to air the flat. The club said it would replace the fan when Mr Z moved out and tell the officer when work was complete. The officer decided not to take further action because replacement was likely to occur in a shorter period than formal enforcement action would take.
- Mr Z reported the club to the Council in October 2014. He made two visits and spoke to the environmental health officer, officer A. She told him twice the Council did not investigate breaches of the working time regulations and he should contact the Health and Safety Executive. This was wrong. Officer A found out the Council could investigate. She asked Mr Z for more information.
- Mrs Z took the information to the Council offices. This included Mr Z’s diary. Officer A told Mrs Z standby hours, when an employee was at home and able to carry out other activities, did not count towards working hours.
- Officer A met the club trustees to discuss the complaint. The club trustees gave her minutes of meetings when they had discussed Mr Z’s working hours and copies of Mr Z’s hours. They said when trustees offered to help Mr Z with tasks he had begun to do them when the helper arrived. The club said it had asked Mr Z to record his hours and it later appointed a relief manager. The club could not show officer A it had properly monitored Mr Z’s working hours. Mr Z showed me an email that showed he could not always rely on the trustees to help him.
- A licensing officer told Officer A that a personal licence holder (for alcohol) did not always have to be on site when drinks were served at the club. The licence holder could delegate the role of serving drinks to other bar staff. So Mr Z could have taken a day off.
- Officer A considered relevant case law, and records provided by Mr Z and the club. She considered the Council’s enforcement policy and discussed the case with her manager. They decided to give the club a written warning that it must monitor the manager’s working hours in future. Officer A told Mr Z.
- Mr Z complained officer A had turned him away when he first reported the matter. He was unhappy Officer A did not interview him or let him comment on the club’s evidence. He disagreed with officer A’s interpretation of working hours and her decision a written warning was appropriate.
- The Council’s head of service, officer B replied to Mr Z at stage 1 of the Council’s complaint procedure. He apologised for officer A’s misunderstanding about who could investigate the matter. Officer B told Mr Z it did not formally interview complainants and considered he had the opportunity to put his views to officer A. Officer B said officer A had no reason to disbelieve the club which provided historic written records, and that she had considered the records from Mr Z and the club. Officer B said Mr Z’s records were not enough to show he had worked continuously for four months as he had said. He said officer A’s decision followed the Council’s enforcement policy.
- Mr Z said the club had agreed in writing he had worked for 66 hours per week. He said the club made him live next door so he could be on call rather than at his home 300 yards away. He said his health had been affected by the hours he worked and the poor condition of the flat which he had also reported to the Council. He said officer A had told him the Council had to look carefully at how to spend its money when they discussed prosecuting the club.
- The complaints manager, officer C replied at stage 2 of the complaint procedure. He agreed officer B’s statement, that the club had acted immediately to resolve Mr Z’s report of over work, was questionable. Officer C considered the club had acted in a timely manner. Officer C told Mr Z officers had correctly advised him the Council was unlikely to be able to successfully prosecute the club as there was not enough evidence of the hours Mr Z worked. Officer C said he had spoken to officer A about what she had said to Mr Z about the costs to the Council of prosecuting the club. She recalled discussing the Council’s criteria for prosecution and denied talking about what this could cost the Council.
- Mr Z complained to the Ombudsman. He said the Council failed to comply with booklets it produced about health and safety. He said the Council had not considered his reports to another Council officer about the poor condition of the flat the club had provided for him. He said Mrs Z had witnessed what officer A had said about cost to the Council. He disagreed with the Council’s decision about the hours he had worked.
- The Council did not have to follow booklets it produced for small businesses. It had to comply with its procedures. These give officers a basic flowchart which officer A followed by considering evidence from both sides, considering internal advice and telling both sides about her decision. The procedures do not require officer A to interview both sides in the same way. Officer B explained that is not the Council’s usual practice. The Council followed its process without fault.
- Officer A had to decide whether she had evidence that showed beyond reasonable doubt the club had wanted Mr Z to work more than 48 hours a week. She did not consider she had enough evidence for the Council to prosecute the club for requiring Mr Z to work those hours because:
- Mr Z decided the hours he and others worked at the club, and
- Although Mr Z produced some evidence of the on call hours he worked he had not provided a breakdown of duties he had undertaken to prove he was engaged in work at all times. (She considered Mr Z needed to show how he had worked while on call because she considered he was on call from his home rather than on call from his employer’s premises.)
- Although Mr Z referred to a document in which the club said Mr Z worked 66 hours a week, the club could have denied this if the Council had prosecuted it. Officer A was properly authorised to decide how to proceed. There is no evidence of fault in the way she considered the evidence about the hours Mr Z worked.
- Officer A found the club had not recorded employee hours as it had to do. The club had told her how it intended to achieve compliance in future. She decided it was proportionate to issue a written warning to the club. Officer A had discretion to decide the most appropriate enforcement action. She followed the Council’s policy in not issuing an improvement notice for this first reported breach of the Regulations. I find no fault with this for the reasons described in paragraph 3.
- Officer A denied referring to what it would cost the Council to prosecute. Mr Z says he and Mrs Z heard her do so. Officers must consider whether their decisions are in the public interest. This includes whether it is appropriate to take action that will need public funds. Officer C’s stage 2 response said officer A referred to the public interest test. I consider officer A probably made reference to the public interest test and that this could mean expenditure. But that is not fault as the cost and benefit the Council could achieve are appropriate considerations.
- Mr Z thinks the Council should have considered how the club handled his complaint about the condition of his flat when deciding whether to prosecute the club for the breach of working time regulations. The Council’s evidence shows Mr Z did not tell officer A about the flat. He did not raise the issue until his complaint to the Ombudsman. I consider even if Mr Z had told officer A about the flat it would not have altered her decision. The club had said it intended to fix the fan within a month and co-operated with the housing standards officer. The Council was not at fault as it considered the material information it had when it decided to issue a warning letter. The new information was unlikely to change the decision.
- The Council followed its complaint process without fault. Its letters addressed the points Mr Z made. The Council accepted its use of “immediate” was questionable at stage 1. It apologised for delay at stage 2.
- I have completed my investigation and found the Council acted without fault in respect of the matters Mr Z complained about. I do not uphold the complaint.
Investigator's decision on behalf of the Ombudsman