Topic 4: Wages and Working Time COPY Flashcards
What happens if there is no contractual term of sick pay in contract?
Employees can fall back on Statutory Sick Pay (SSP) if there is no contractual term.
SSP is paid for each ‘day of incapacity’ during a period of at least four consecutive days of incapacity (including days not normally worked). Entitlement period lasts up to 28 weeks – the employee then transfers to social security benefits. SSP is currently £92.05pw.
different types of pay for airline pilots - Paid annual leave - workers are entitled to their ‘normal remuneration’ when on leave:
British airways pilots whose wages were split: fixed wage, a supplementary hourly rate for time spent flying and a supplement for time spent away from base. If they were flying transatlantic, and fly back a day later, they got this supplement. BA were only paying them when they were on annual leave their fixed wage, they did not get the supplements. CJEU found the entitlement to normal remuneration during annual leave includes all payment “intrinsically linked to the performance contractual task”.
payments for airline payments while they fly was part of normal remuneration so this was part of the normal remuneration so should receive normal supplement but not “ancillary” payments arising at the time when performing their ordinary task such as time spent away from their base.
- What is intrinsic will be left to the national courts (ET) on a case to case basis.
- Calculation is the average over the reference period. In some weeks there are more or less flights, this will be averaged out over the year and payment should be the average over the year
British Airways v Williams (No 2)
SC
Schulte
15 months after end of leave year not precluded but time period can be limited when there is no longer a health and safety justification for the leave – suggested maximum carry over period of 18 months
CJEU took view that 15 months was not precluded (After end of leave) but max carry over period of 18 months (2 and a half years of sickness and contract still in forced, employer not been terminated, there is still entitlement) argument: that the employee is so detached
Crawford v Network Rail Infrastructure
cannot add up shorter breaks (e.g. two ten minute breaks)
where two ten minute breaks offered separately was not sufficient, must be the 20 minutes. 20 minute separation, e.g. 2 x 10 minute breaks are not enough to protect employee.
- A public body may investigate employees to see if they are complying with the NMW.
- If they are not, the HMRC may take legal action to compel them to do so, and to secure payment of arrears to the affected workers. A deliberate failure to pay the NMW is a criminal offence and may leave to prosecution.
Enforcement for breaching NMW
El-Hajjali
clause requiring newly hired worker with highly specialist skills to make a payment to the company if they failed to start work. Penalty clause if you failed to start work. Held: lawful because In this situation highly skill/specialised, difficult to recruit someone and agreement pre estimated employers losses in this situation. This does not happen often.
leave had to be taken on a Saturday (six days a week short-term contract) – rule upheld
The leave had to be taken on a Saturday. Worker has a 6 day a week short term contract leave must be taken on Saturday. Rule is upheld – inflexible but if leave taken on a Saturday it would still be counted as a normal working day.
Sumsion v BBC
Gomes v Higher Level Care
No compensation for injury to feelings
it will mainly be for financial loss (paid annual leave, more difficult for rest period.
NOTE: The minimum period of paid annual leave is four weeks under the Directive (reg 13) but in the UK bank or public holidays are in addition to this entitlement – an extra 1.6 weeks (reg 13A). The statutory entitlement is therefore a minimum of 5.6 weeks paid annual leave for those working a standard five day week = 28 days (pro-rata for those working part-time or casually)
How much annual leave is one entitled to?
Normal remuneration: may include commission if part of contractual pay.
Significant proportion 60% of income of British gas fitters was commission. However, British gas only paid their basic salary when they were on annual leave. Thus 60% was not paid. ET found: if it is part of the normal remuneration they should be paid. Went to CJEU (case below.
Lock v British Gas
No compensation for injury to feelings
it will mainly be for financial loss (paid annual leave, more difficult for rest period.
Gomes v Higher Level Care
In each case the measures applied must ensure that the workers concerned are afforded ‘an equivalent period of compensatory rest’ and in ‘exceptional cases’ when it is not possible for ‘objective reasons’ to grant such rest, workers must be afforded ‘such protection as may be appropriate’ to safeguard their health and safety.
Commission v UK
SIMAP
CJEU strong approach to “on call” cases
If the worker was required to be at the employer’s premises during “on call” time, he or she was “working for working time purposes. This was affired in Jaeger, even though in that case, the worker was provided with somewhere the sleep when not required to work.
CJEU: GPs at health clinic, they were on call when they were at home but could carry out normal activities, but they could be called and once called they had to go to clinic. Only when they were actually called and required to go into clinic was this working time. The rest of the time they had autonomy and were free
Affired SIMAP in this case, even where the worker was provided with somewhere to sleep when not required to work.
doctors at hospital where they were required to rest (and perhaps sleep) and they would be called. Because they were required to be at the work place, at employers disposal, called at any time, this was working hours. This then counted towards 48 hours and this time could not count as rest periods because of absolute division between working time and rest. But established that only 49% of the time on call, they were carrying out their professional activities – strong application of idea of what is working time.
Jaeger
Does the NLW and the NMW and rights under the WTR apply to all workers?
yes
Commission v UK
Derogations apply in respect of this group(unmeasureed or self-determined working time) from all the minimum requirements except paid annual leave.
applies only to workers whose working time ‘as a whole’ is unmeasured or self-determined. Cjeu held: if all of someone’s working time is decided by themselves then they would fall within this category because they choose when to work/when to rest. Any worker who is personally subordinate to employer to these choices, would not normally be covered.
rule that no annual bonus award if at date of payment, the employee is no longer employed by the bank.
Someone could be paid by bank for 9 months of year and then get another job, the would not get bonus for that period that they would be there. He got no bonus, and so claimed there was a breach of contract to not exercise the bank’s discretion irrationally or perversely.
That said, the bank did make substantial bonus awards in 2003 and 2004, and although this was less than Keen had hoped for, it could not be said to have been irrational, arbitrary or perverse, which Keen would have had to show if he wanted to challenge the amount. Moreover, not irrational not to make a payment.
The principle arising from this judgment is that employers do have discretion but this must not be irrationally, perversely or arbitrarily exercised.
Commerzbank v Keen
Barber v RJB Mining
The WTR does not give the worker a remedy in the respect of the 48 hour week. This case filled in the gap.
The workers here refused to sign an opt-out, but the employer insisted that they continue working over the limit. The judge held that the 48 hour limit apparently because of its manadtory language in which it was expressed, was intended by Parliament to be a term in the workers’ contracts. This opened up the posisbility of an injunction to stop the employer from insisting on longer working hours, though the judge refused to grant the injunction because he did not regard it as appropriate.
This is different from equality. READ INTO CONTRACT – unusual.
Once established, it opened up possibility of injunction to stop employer insisting longer working hours.
ET cannot bring injunctions, ET will simply uphold the right and require it to be enforced, so this case might be a civil case. Where a worker is forced to work particulrly long hours to the extent that his or her health is damaged, it may be possible to bring a claim against the employer in tort (outside the WTR), where it can be shown that the employer breached its duty of care towards the worker.
claimant agreed to temporarily work for 4 days a week, they agreed to work mon-Thursday because market conditions had worsened, this would avoid redundancy situation. However, the employer refused to pay them a guarantee payment for the fifth day. They raised this as a grievance. Held: notwithstanding fact they agree to work only 4 days, this did not preclude them from the guaranteed payment because their contract was to work 5 days. Agreement to work 4 days, legitimate to expect that NORMALLY they would be working on a Friday so should receive guarantee pay,
The Court of Appeal allowed the appeal in all three respects. First, during the currency of the Agreement (to work 4 days instead of 5) Fridays remained days on which they were “normally” contractually required to work, and in so far as work was not provided for them on those days they were workless days within the meaning of Part III ERA 1996 in respect of which they were entitled to guarantee payments.
The ERA s28 provides for employees, without protection under their contract, to have a limited right to “fall-back pay” - a ‘guarantee payment’ - for each ‘workless day’. The current rate is £28 per day – but only for a maximum of five days – so £140 - in any three-month period:
Abercrombie v Aga
Bauer Case C569
At time of Bauer’s death (Worker) he had 25 outstanding days of paid annual leave. His wife was the beneficiary of his estate and asked the employer for a payment in lieu of the 25 days which was refused. German law precluded an allowance in lieu of part of the deceased estate (not apply in UK).
CJEU: this German law which prevented this being part of the estate. Was contrary to art 31(2) of charter. national court had a duty to disapply the decision in the particular case but also found that the right was so fundamental that in the context of the right under EU law, it was horizontally directly effective from the charter. Emphasises that this right has been put on the EU system highly.
cannot add up shorter breaks (e.g. two ten minute breaks)
where two ten minute breaks offered separately was not sufficient, must be the 20 minutes. 20 minute separation, e.g. 2 x 10 minute breaks are not enough to protect employee.
Crawford v Network Rail Infrastructure
How much deduction should be taken if a worker is on strike but they have a salary?
The modern view is that salaried workers accrue their earnings on a daily basis so a deduction for each part not worked would be appropriate rather than refusing to pay their whole year’s salary
Mears v Safecar
In the absence of an express term (entitling him to sick pay) in the contract it may be possible to imply a term.
employer’s practice well known the practice. = Had parties put their minds to it, they would have agreed and thought it was reasonable for sick pay.
Accomodation can be provided (when this is provided, it can contribute towards the NLW/NMW.
But ONLY ACCOMODATION not heating/lighting
Here £6 was deducted from the NLW for heating and lighting. Found to be unauthorised, could not be deducted from Living wage because it was heating and lighting not accommodation.
accommodation provided by an employer is included but subject to an “offset rate” of £49pw (£7 per day). Offset rate: If an employer charges more than the offset rate, the difference is taken off the worker’s pay which counts for the National Minimum Wage or National Living Wage:
Leisure Employment v HM Revenue & Customs
It has been argued that reg 8 WTR does not fully capture the concern addressed by art 13 WTD
Bercusson called the principle of the “humanisation of work”, the idea that work should be organised around the worker, rather than around the employer.
What does art 8 WTR do?
British Airways v Williams (No 2)
SC
different types of pay for airline pilots - Paid annual leave - workers are entitled to their ‘normal remuneration’ when on leave:
British airways pilots whose wages were split: fixed wage, a supplementary hourly rate for time spent flying and a supplement for time spent away from base. If they were flying transatlantic, and fly back a day later, they got this supplement. BA were only paying them when they were on annual leave their fixed wage, they did not get the supplements. CJEU found the entitlement to normal remuneration during annual leave includes all payment “intrinsically linked to the performance contractual task”.
payments for airline payments while they fly was part of normal remuneration so this was part of the normal remuneration so should receive normal supplement but not “ancillary” payments arising at the time when performing their ordinary task such as time spent away from their base.
- What is intrinsic will be left to the national courts (ET) on a case to case basis.
- Calculation is the average over the reference period. In some weeks there are more or less flights, this will be averaged out over the year and payment should be the average over the year
the High Court established that employers, when deciding whether to award discretionary bonuses, must not behave irrationally or perversely.
Mr Clark had earned substantial profits for the company during the relevant period.
Other senior employees, including one whose department made a loss, were awarded substantial bonuses. C sought damages for breach of contract in failing to make payment of any bonus.
For an employer exercising a discretion to be found to be in breach of contract, it must be shown that no reasonable employer would have exercised the discretion in that way and that was expressed as being a test of irrationality or perversity.
Nomura
Sumsion v BBC
leave had to be taken on a Saturday (six days a week short-term contract) – rule upheld
The leave had to be taken on a Saturday. Worker has a 6 day a week short term contract leave must be taken on Saturday. Rule is upheld – inflexible but if leave taken on a Saturday it would still be counted as a normal working day.
- Annual leave can be postponed if the worker is sick during the leave
Pereda
Russell v Transocean
Offshore workers could be required to take annual leave during their “short time”.
The workers worked on an oil rig on a “two weeks on, two weeks off basis” and argued that since leave meant time off when they would otherwise be working, they were entitled to take leave during the “on” periods. The SC rejected this argument on the basis that “rest time” simply meant time away from work, and it did not matter if the time in question was fixed by the employer at the time when no work would have been taking place.
Problem:
The SC noted that there appears to be nothing to stop an employer from requiring an employee to work Monday-Friday, to treat Sundaay as the statotury rest day and to take annual leave every Saturday when he or she would not have been workign anyway, thereby denying the worker an opportunity to take leave in any meaninful sense.
Gallagher v Alpha Catering
airline workers who it was found that the length of time required for them to be working fell within derogation “continuity of production. These workers provided services on planes, they were not flying. Found: important of take off times, in busy periods there was a busy period and if required to work longer than 6 hours, they were entitled to compensatory rest. Often rushed of their feet. Specific amount of compensatory rest separate from down time which needed to be clarified. Compensatory rest should be for an equivalent period.
Shimizu
Worker was not given an opportunity to take the leave, there was no statement in contract stating this, but work was ordered in such a way that it was difficult to take the leave (not enough people working on shifts etc). The worker felt that if they sought to take the leave, they would be penalised or difficulty in doing so.
Point established: employer must enable the worker to exercise the right to annual leve. If employer fails to exercise the right, the principle in King applies, that worker can take extra leave later of receive payment in lieu upon termination.
Aspden v Webbs
In the absence of an express term (entitling him to sick pay) in the contract it may be possible to imply a term.
Sufficient evidence that there would have been an agreement for sick pay.
Worker was not given an opportunity to take the leave, there was no statement in contract stating this, but work was ordered in such a way that it was difficult to take the leave (not enough people working on shifts etc). The worker felt that if they sought to take the leave, they would be penalised or difficulty in doing so.
Point established: employer must enable the worker to exercise the right to annual leve. If employer fails to exercise the right, the principle in King applies, that worker can take extra leave later of receive payment in lieu upon termination.
Shimizu
If the worker was required to be at the employer’s premises during “on call” time, he or she was “working for working time purposes. This was affired in Jaeger, even though in that case, the worker was provided with somewhere the sleep when not required to work.
CJEU: GPs at health clinic, they were on call when they were at home but could carry out normal activities, but they could be called and once called they had to go to clinic. Only when they were actually called and required to go into clinic was this working time. The rest of the time they had autonomy and were free
SIMAP
CJEU strong approach to “on call” cases
As a general rule, however, the common law allows for deductions from wages for losses suffered by the employer unless the deduction is excessive:
Facts: Mr Smith worked as a driver. He was required to give four weeks’ notice of termination of employment. There was a clause in his contract stating that, “unless agreed otherwise, failure to give the proper notice and work it will result in a deduction from your final payment equivalent to the number of days short.” When Mr Smith left without giving notice, his employer refused to pay him.
The EAT agreed with the employment tribunal and held that the clause in the contract was an unlawful penalty clause rather than a lawful liquidated damages clause. A contract of employment may contain a liquidated damages clause, provided it is a genuine pre-estimate of loss and not a penalty. Under the clause in this case, even if the employer suffered no loss at all, the employee was liable for the whole sum. It was held to be unenforceable.
EAT were influenced that:
- the worker who was a driver, could be easily replaced, so that any lossess sufferred byt he employer would probably be minimal.
- Contrasting El-Hajjali = each case needs to be considered on its facts/
Giraud v Smith
Leisure Employment v HM Revenue & Customs
Accomodation can be provided (when this is provided, it can contribute towards the NLW/NMW.
But ONLY ACCOMODATION not heating/lighting
Here £6 was deducted from the NLW for heating and lighting. Found to be unauthorised, could not be deducted from Living wage because it was heating and lighting not accommodation.
accommodation provided by an employer is included but subject to an “offset rate” of £49pw (£7 per day). Offset rate: If an employer charges more than the offset rate, the difference is taken off the worker’s pay which counts for the National Minimum Wage or National Living Wage:
employee succeeded in showing the Kleinwort Benson factors so they were able to keep the payment.
Avon v Howlett
Walton
Used the “unmeasurered work” option and paid the worker on the basis of a “daily average” agreement.
If it is “unmeasured work” there is no need to separate out the sleeping time if there is a “daily average” working hours’ agreement.
claimant was a care worker who spent 3 days a week living in home of a person she was caring for. She needed to be available for 24 hours a day. There was a written agreement in place that said her dutieis took on average approx 7 hours. She argued that in practise, the person she was caring for was demanding and she was working up to 14 hours a day. Held: paid by reference to tasks performed and not time, so did not fall within time worked category, it was unmeasured work so it depends what the daily hours agreed was.
Held: The Regulations distinguished between ‘time work’ and ‘unmeasured work’. If her duties did not fall within the time work definition, the basis became unmeasured. In this case she was not paid by reference to the time she actually worked. It was not therefore time work, but unmeasured work.
Normal remuneration – includes voluntary overtime that is normally paid
if overtime is voluntary, if regular over the year, it will be regarded as normally paid and should be applied
Dudley MBC v Willetts
Scottbridge Construction v Wright
2003
Similar as in British Nursing
night watchman permitted to sleep during shift. Held: they were engaged in timed work and therefore they should receive the NMW
Pereda
- Annual leave can be postponed if the worker is sick during the leave
What is the working time for which the NLW/NMW must be paid
- Time work
- work paid for by reference to the number of hours worked (even if they vary) – so, typically where a worker receives an amount for each hour worked - includes any time available for work (on-call workers) but not rest breaks.
- Salaried hours work
- work paid for by annual salary regardless of the actual hours worked, usually paid weekly or monthly. Hours counted by reference to the contract (may have to be paid for excess hours). All time included except: long term sick leave, unpaid leave, and time engaged in industrial action
- Output work
- work paid for by reference to the pieces produced “piece work” – must be translated to an hourly rate.
- Unmeasured work
- does not fall into the other categories – default for workers who do not have fixed hours or required to do work when it is available. Either a “daily average” is agreed between the parties or they must be paid for every hour actually worked
These workers are also entitled to ‘compensatory rest’:
workers on an “educational commitment contract” responsible for safety of children. Equivalent of reg 21 concerning “Security” would apply to this. Security was interpreted broadly even though they were educating children. Even though derogation applied to them, still entitled to compensatory rest.
USSI v Premier Minister
Bristow v City Petroleum
Retail worker
There must be transparency, so the agreement to deduct must be clear
Transparency clause
What are the derogations?
- unmeasured or self-determined working time
- general derogations
- specific derogations:
Mencap v Tomlinson
and
Shannon
CA
Previous line of case law has been overturned by the Court of Appeal
relying strictly on Reg 32(2) – ‘the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working’ (per LJ Underhill)
- CA said this case law is not compatible with reg 32 because that said you need to be awake. Only time that counts for NMW purposes is when the worker is required to be awake when working. This was similarly found in Hopkins.
Scope of the ‘entitlement’ to paid annual leave:
UK’s 13-week qualifying period (QP) was incompatible with Art 7 of the Directive and therefore invalid (now no QP). The right to a minimum period of paid annual leave is ‘a particularly important principle of [EU] social law’ from which there can be no derogations and implementation must be confined within the limits expressly laid down in the Directive.
Facts:
Hired less than 13 weeks, argument that they should be entitled to a few annual leave pro-rate. CJEU agreed that 13 week qualifying period originally introduced was incompatible to the right for every worker to be paid annual leave, so the UK had to disapply it. The regulations were amended and now if you work on a short contract – still entitled to a certain amount of annual leave pro-rata.
CJEU:
Although art 7(1) WTD gives a role to national law in determining the “condition for entitlement” to paid annual leave, the CJEUhas taken a strict line on this. The UK initially impletmented the right with a 13 week Qualifying period. This was chllenged before the CJEU in which trade unions argued that many members would not be abel to take leave because they had short term contracts. The CJEU upheld the compaint on the basis that conditions for entitlement could nnot be such as to deprive workers of their rights. Since then, UK has adopted a different approach in which workers in their first year of employment accure 1/12th of the annual leave entitlement for each month they work.
BECTU v Secretary of State
CJEU CASE
Derogations apply in respect of this group from all the minimum requirements except paid annual leave.
hospital in German where doctors were provided with a restroom and working in emergency department, in some case they were inactive. Argued the derogation applied in relation to reg 20. Held: it could not be used to say they could be working longer than 48 hours and rest rules did not apply to them because they were not “wholly” autonomous. Only small number would fall under this and rely on this.
Jaeger
Jaeger
Derogations apply in respect of this group from all the minimum requirements except paid annual leave.
hospital in German where doctors were provided with a restroom and working in emergency department, in some case they were inactive. Argued the derogation applied in relation to reg 20. Held: it could not be used to say they could be working longer than 48 hours and rest rules did not apply to them because they were not “wholly” autonomous. Only small number would fall under this and rely on this.
CRITISISM: Mead questions whether analysis in Wiluszynski is correct as a matter of contract law. The employee’s repudiatory breach entitled the employer to terminate the contract and dissmiss the employee. But if the employer elects not to do this, the employer must be ready and willing to perform its side of the bargain. Therefore, unless the action short of a strike deprives the employer of substantially what it bargained for, it should still make some payment ot the employee. Since the employer is entitled to damages for breach from the employee, the employer wuld be entitled to reduce the paument to reflect the damages. In some cases, this would mean that no pay was due. In cases like Wiluszynski where the harm to the employer was small, it might be argueable that some payment was still owed to the employee.
Another suggestion by the courts and some commentators is that the employees could bring a claim in unjust enrichment. Burrows thinks this. However, this is hard to argue that the employer is “unjustly” enriched when it makes it clear that it does not want the employee to perform.
Critisisms in Wiluszynski
Craig v Bob
– contract allowed for periods of lay-off and short-term working for an indefinite period - no implied term of reasonableness as to the length of lay-off
The Claimant was employed by the Respondent as a draughtsman from October 2004 until August 2014, when he resigned and claimed constructive unfair dismissal following a four week period when he was laid-off without pay. He claimed that the lay-off had extended for a period longer than was reasonable and that the Respondent was accordingly in repudiatory breach of contract, notwithstanding the Respondent’s express contractual right to lay off staff for an indefinite period without pay.
The EAT dismissed the appeal. Parliament had provided a statutory scheme for balancing the rights of employers and employees in circumstances where both were adversely affected by a short-lived downturn in business. That scheme provided for a four-week period, during which there was no entitlement to claim a redundancy payment, which left little room for any term implied by common law to operate. In any event, even were there an implied term that a period of lay-off would extend no longer than was reasonable, Parliament had set out a four-week benchmark, from which “there would have to be cogent, well-evidenced reasons to depart” and there were no such reasons in this case.
Deductions for industrial action – s14(5)
Teachers are contractually bound to comply with the head’s reasonable directions for the proper administration of the school, which includes “cover” for absent colleagues. The plaintiffs were teachers employed in a secondary school. It was their normal practice to “cover” for absent teachers. Following union instructions they refused to do so, but remained at school occupied in their normal tasks. The employers deducted a small part of their salary for “breach of contract,” The actual written contracts were silent on this point. The teachers issued writs asserting that they were not contractually bound to cover for absent colleagues.
Held, that the deductions were properly made; teachers were professionals and it was their contractual duty to discharge all their professional obligations which included the head’s reasonable directions on the proper administration of the school
Sim v Rotherham MBC
Flowers v East of England
Normal remuneration – if voluntary overtime is paid ‘over a sufficient period of time’ – a question of fact for the ET
Suggests if only occasionally overtime, and other times there is not, you would not expect to get it over annual leave.
“rolled-up” holiday pay - the worker must be able actually to take the leave to which he is entitled. The right to annual leave and the obligation of payment are ‘two aspects of a single right’ – payment is necessary as a guarantee of actual rest
Facts: There was a small addition of payments as if they were on annual leave. When worker took annual leave, they did not get paid because they had already been paid. This type of holiday pay was “rolled-up”,
If it is “rolled up” and you use it to cover living costs, you might feel like you cannot go on holiday because you do not get paid. . This opens up for a more transparent scheme, but this money needs to be identified and set aside so they can identify this.
Robinson-Steele
McLean v Rainbow Homeloans
Protection against dismissal – ERA s101A: this will only be for employees a worker
Hopkins
[2011]
The EU law definition of working time for the WTD is different to the domestic definition of working time for the NMW purposes.
Claimant was housekeeper in a residential home. She lived on the premises and was expected to be “on call” overnight during the working week. She was paid for her work during the day. it was held that the nights spent “on call” counted for determining the claiamnt’s working time but not her entitlement to the NMW.
Critisism: Davies thinks it is “odd” that the law deems someone to be working but with no entitlement to be paid.
– sleeping time excluded except when a worker has to get up to do work certain inconsistency in case law. This is before the two CA cases of Mencap and Shannon
But working time counted for the purpose of the Working Time Regulations included sleeping periods when the worker was not entitled to the NLW/NMW
This is because under the WTR (based on EU law), the WTR treats all sleeping time where the worker is ‘at the employer’s disposal’ as ‘working time’ – leads to an anomaly when the sleeping time does not count for the NLW/NMW but does for the WTR.
Bollacke v Klass
death does not extinguish outstanding paid annual leave entitlement.
Upon death of the worker, any unpaid leave will be outstanding and will go to estate of worker.
Previous line of case law has been overturned by the Court of Appeal
relying strictly on Reg 32(2) – ‘the only time that counts for NMW purposes is time when the worker is required to be awake for the purposes of working’ (per LJ Underhill)
- CA said this case law is not compatible with reg 32 because that said you need to be awake. Only time that counts for NMW purposes is when the worker is required to be awake when working. This was similarly found in Hopkins.
Mencap v Tomlinson
and
Shannon
CA
- Time work
- work paid for by reference to the number of hours worked (even if they vary) – so, typically where a worker receives an amount for each hour worked - includes any time available for work (on-call workers) but not rest breaks.
- Salaried hours work
- work paid for by annual salary regardless of the actual hours worked, usually paid weekly or monthly. Hours counted by reference to the contract (may have to be paid for excess hours). All time included except: long term sick leave, unpaid leave, and time engaged in industrial action
- Output work
- work paid for by reference to the pieces produced “piece work” – must be translated to an hourly rate.
- Unmeasured work
- does not fall into the other categories – default for workers who do not have fixed hours or required to do work when it is available. Either a “daily average” is agreed between the parties or they must be paid for every hour actually worked
What is the working time for which the NLW/NMW must be paid
Hughes v Corps of Commissionaires
secutiry guard who came under derogation of “security and surveillance”, although he worked more than 6 hours without rest break, he was entitled to compensatory rest and legitimate to argue that this fell within the derogation.
What is the impact of a st4rike?
A strike is a repudiatory breach of contract. Therefore, the worker has little right to complain if his pay is docked.
Abellio
worker does not have to ask for a rest break in order to be entitled to have one.
Duty of employer to fix rest breaks and if they do not fix this, the worker is still entitled to take one.
Kleinwort Benson
Laid down that employer can recover an overpayment of wages by mistake, unless employee can show three things:
- employer led them to believe the money was theirs.
- employee acted on good faith (Spent the money),
- overpayment was not caused by their own fault.
Dudley MBC v Willetts
Normal remuneration – includes voluntary overtime that is normally paid
if overtime is voluntary, if regular over the year, it will be regarded as normally paid and should be applied
Jaeger
Affired SIMAP in this case, even where the worker was provided with somewhere to sleep when not required to work.
doctors at hospital where they were required to rest (and perhaps sleep) and they would be called. Because they were required to be at the work place, at employers disposal, called at any time, this was working hours. This then counted towards 48 hours and this time could not count as rest periods because of absolute division between working time and rest. But established that only 49% of the time on call, they were carrying out their professional activities – strong application of idea of what is working time.
yes
Does the NLW and the NMW and rights under the WTR apply to all workers?
airline workers who it was found that the length of time required for them to be working fell within derogation “continuity of production. These workers provided services on planes, they were not flying. Found: important of take off times, in busy periods there was a busy period and if required to work longer than 6 hours, they were entitled to compensatory rest. Often rushed of their feet. Specific amount of compensatory rest separate from down time which needed to be clarified. Compensatory rest should be for an equivalent period.
Gallagher v Alpha Catering
Bear Scotland v Fulton
Normal remuneration may include overtime pay
The EAT found that regular overtime, which employees are obliged to perform if requested by the employer, should be included for holiday pay purposes
Regular overtime paid, paid at higher hourly rate than normal contractual time. Equivalent of overtime was not included but was a substantial element of normal pay.
The EAT did not explicitly deal with this point in the Bear Scotland cases but, in another case that looked at including commission in holiday pay (Lock v British Gas Trading), the European court said that it is for the national courts to work out what reference period is appropriate in order to achieve a “representative” average.
- unmeasured or self-determined working time
- general derogations
- specific derogations:
What are the derogations?
