Topic 4: Wages and Working Time COPY COPY

Question 1

Howman

Answer 1

In the absence of an express term (entitling him to sick pay) in the contract it may be possible to imply a term.

custom of the industry was that there was sick pay, so sufficient applying custom and practise approach.

Question 2

Bollacke v Klass

Answer 2

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.

Question 3

Gomes v Higher Level Care

Answer 3

No compensation for injury to feelings

it will mainly be for financial loss (paid annual leave, more difficult for rest period.

Question 4

Julio v Jose

Answer 4

The NMW will not apply where an individual is a voluntary worker

case involving domestic worker who were living in house of family, provided meals, socialised with family and also did a few chores around the house which they shares with family. Were they family workers even though they were living in the house and not member of the family? Held: they were family member because they shared chores and socialised with family. Held: not entitled to NMW

Question 5

Miles v Linkage

Answer 5

employer must have refused permission to exercise the right. Compensation refused unless employer requested it and it was refused.

Question 6

What happens if an employer does not pay the NLW/NMW?

Answer 6

An employer who has been found to have underpaid must pay any arrears in full at current NLW/NMW rates and can be ordered to pay a penalty - maximum is £20,000 per worker.

Statutory enforcement is the responsibility of HM Revenue & Customs (HMRC).

Question 7

BECTU v Secretary of State

CJEU CASE

Answer 7

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.

Question 8

Matzak

Answer 8

ECJ held that all periods falling within the definition in Article 2 (same as Reg 2) count as ‘working time’ including periods of inactive time when the worker is at the employer’s disposal at the workplace (includes standby by time within 8 minutes travel time to work in Matzak)– such time is subordinate time not free time. It followed that rest periods have to be provided separately from ‘working time

In Hopkins case, they were not entitled to NMW when they weren’t active, but this time was found to count towards their national weekly time.

Question 9

Delaney v Staples

Answer 9

Protection in retail

The claimant had been dismissed but had been given no payment in lieu of notice. She claimed to the Industrial Tribunal that this was an unlawful deduction from her wages

A payment in lieu of notice arose from the termination of the employment contract not from a request for payment for services done, rather than to the provision of services by the employee, and were not ‘wages’.

Held: payment in lieu where someone summarily dismissed is not wages. Necessary to show summarily dismissal was breach of contract and then this would be wages.

Question 10

British Nursing Association v IRC

[2002]

Answer 10

Treated “on call” time as time work and required the employer to pay the NMW for each hour spent “on call”.

nurses working from home dealing with ‘phone enquiries, required to answer the phones all night, but between calls were free to do as they chose. Held: they were engaged in timed work and therefore they should receive the NMW.

Question 11

What is the working time for which the NLW/NMW must be paid

Answer 11

1. Time work
   
   1. 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.
2. Salaried hours work
   
   1. 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
3. Output work
   
   1. work paid for by reference to the pieces produced “piece work” – must be translated to an hourly rate.
4. Unmeasured work
   
   1. 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

Question 12

Wakefield

HL

Answer 12

The claimant was a superintendent registrar of Births Deaths and Marriages. His union instructed him not to conduct weddings on Saturdays.

The refusal to conduct marriages on the Saturday was met with deduction of 3/37ths (3 out of number of hours he normally works a week) of his weekly salary.

Held: The deductions were proper. although the registrar did other duties on Saturdays, the employer was entitled to refuse to accept less than full performance. However, as Freedland points out, some of the judges suggested that the employer might have been entitled to refuse to pay him any of his monthly salary. This suggestion gained track in Wiluszynski.

Question 13

SIMAP

CJEU strong approach to “on call” cases

Answer 13

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

Question 14

FNV v The Netherlands

Answer 14

Payment in lieu = contract comes to an end and worker has not taken all their leave, they should get a lump sum at the end at termination.

Question 15

King v The Sash

and

Dollar v King

Answer 15

If refused to pay for annual leave, worker entitled to back pay

Back pay entitlement if the worker is refused pay for annual leave?Yes - if the worker has not taken annual leave because the employer refused to pay for that leave, the worker is entitled to pay in lieu for the minimum statutory period of annual leave for the whole period of the contract – entitled to go back to 1 June 1999

established that King was a worker and he had been working from 1999 to 2012. In this period, in some years he took no annual leave at all in other years he took annual leave but he had not been paid for it. Contract was terminated in 2012, was he entitled to 13 years payment in lieu for paid annual leave he had not been provided with. CJEU found: he was because he was entitled to the minimum period of paid annual leave from day 1 of his employment. This had been denied to him by the employer and the court applied art 31 of the charter – right for every worker.

Question 16

Sumsion v BBC

Answer 16

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.

Question 17

Crawford v Network Rail Infrastructure

Answer 17

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.

Question 18

Leisure Employment v HM Revenue & Customs

Answer 18

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:

Question 19

Bristow v City Petroleum

Answer 19

Retail worker

There must be transparency, so the agreement to deduct must be clear

Transparency clause

Question 20

Does the NLW and the NMW and rights under the WTR apply to all workers?

Answer 20

yes

Question 21

Gallagher v Alpha Catering

Answer 21

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.

Question 22

Jaeger

Answer 22

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.

Question 23

Enforcement on daily rest/weekly rest etc?

Answer 23

responsibility of Health and Safety Executive to bring prosecutions – criminal and civil enforcement

Question 24

Gallagher v Alpha

Answer 24

rest break must be for a fixed period in advance of its commencement (At least 20 minutes) and uninterrupted. This is where working day is more than 6 hours. At least after 6 hours there must be 20 minute fixed rest break. There could be another one after.

Facts: the Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and at their disposal. Down time in the present case . . cannot be a rest break:

• the worker can use as he pleases the rest break

Question 25

Lock v British Gas

Answer 25

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.

Question 26

Stringer

HL

Answer 26

Annual leave continues to accrue during sick leave

The European Court of Justice has held that the right to paid annual leave continues to accrue during sick leave and, on termination of the employment relationship, a worker who has been on sick leave and unable to take paid annual leave is entitled to a payment in lieu.

Question 27

Ashcourt Rowan v Hall

Answer 27

Only if the person is not performing their duties are they on garden leave

Question 28

Whittlestone

Answer 28

Sleep over in house they were caring for. Found: they had fixed hours and this meant that they were time workers. They had to be there and even when they were sleeping they were time workers.

Question 29

What does the EU Working Time Directive do?

Answer 29

changed the landscape by providing for minimum standards for all workers concerning paid holidays, working time, rest periods and the organisation of work. It has been implemented in the UK by the:

Working Time Regulations (WTR)

Question 30

Giraud v Smith

Answer 30

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:

1. the worker who was a driver, could be easily replaced, so that any lossess sufferred byt he employer would probably be minimal.
   
   1. Contrasting El-Hajjali = each case needs to be considered on its facts/

Question 31

USSI v Premier Minister

Answer 31

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.

Question 32

Why are there differencesbetwen the NMW and the WTR?

Answer 32

1. Different sources:
   
   1. NMW is a domestic measure
   2. WTR implements an EU directive, the approach on call time reflects decisions of the CJEU
2. Purposes are different
   
   1. NMW is designed to ensure that workers are faily remunerated for the work completed
   2. WTR is about protecting the heath and safty of workers.

Question 33

Fuß v Stadt Halle II

Answer 33

Direct effect of maximum working week provisions and right of reparation under EU law against public sector employers in breach of their obligations:

Question 34

Wiluszynski

Answer 34

refusal to reply to councillors’ enquiries during an industrial action. This amounted to a few hour’s of work over a period of several weeks. The council make clear that it would not accept or pay for anything other than full performance of his duties, adnd that any work he did during the industrial action would be voluntary.

CA upheld employer’s right to refuse any payment. the council made clear that it would not accept partial performance of duties - was entitled to deduct wages in full.

Important:

The council had not undermined its statement that it would not accept partial performance

• it had not given him work
• or instructed him during the industrial action

and there was no obligation on the council to prevent him from working.

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.

Question 35

Schulte

Answer 35

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

Question 36

Greenfield

Answer 36

– increase of hours by part-time worker – no right to retrospective adjustment to annual leave entitlement

A worker had their hours increased, they were not entitled to retrospective adjustment during year of annual entitlement. Part of issue is pro rate – that is 1.6 pro rata so it will depend on the number of hours leave in relation to year as a whole to depend how much time of annual leave you have.

When a worker increases their hours, does any statutory annual leave that has already accrued need to be recalculated retrospectively to take account of the increased working hours?

No says the ECJ

Question 37

Avon v Howlett

Answer 37

employee succeeded in showing the Kleinwort Benson factors so they were able to keep the payment.

Question 38

Robinson-Steele

Answer 38

“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.

Question 39

Devonald v Rosser

Answer 39

This is the common law position, but now we have a statutory position

Prima facie entitlement to be paid wages for the period of lay-off and for any period of notice was established at common law.

The courts here extended protection to other groups of employees by developing the idea that it is the employer’s responsibility to provide employees with work so that they have an opportunity to earn money

They are entitled to damages but not a right to work.

Question 40

Kerr

Answer 40

tribunal found that if the deduction is made under a provision of the worker’s contract then the worker must have seen the term. A notice in a factory on the notice board was not a sufficient way to communicate a lawful deductions clause.

Question 41

McLean v Rainbow Homeloans

Answer 41

Protection against dismissal – ERA s101A: this will only be for employees a worker

Question 42

Hopkins

[2011]

Answer 42

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.

Question 43

Dudley MBC v Willetts

Answer 43

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

Question 44

Commission v UK

Answer 44

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.

Question 45

Grange v Abellio

Answer 45

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.

Question 46

Hughes v Corps of Commissionaires

Answer 46

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.

Question 47

Mencap v Tomlinson

and

Shannon

CA

Answer 47

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.

Question 48

Kleinwort Benson

Answer 48

Laid down that employer can recover an overpayment of wages by mistake, unless employee can show three things:

1. employer led them to believe the money was theirs.
2. employee acted on good faith (Spent the money),
3. overpayment was not caused by their own fault.

Question 49

What are the three enforcement mechanisms for pay?

Answer 49

1) common law, through an action for an agreed sum
2) common law, through an action for damages
3) staturory protection.

Question 50

Barber v RJB Mining

Answer 50

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.

Question 51

How much deduction should be taken if a worker is on strike but they have a salary?

Answer 51

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

Question 52

Sim v Rotherham MBC

Answer 52

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

Question 53

What is the impact of a st4rike?

Answer 53

A strike is a repudiatory breach of contract. Therefore, the worker has little right to complain if his pay is docked.

Question 54

Jaeger

Answer 54

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.

Question 55

Nomura

Answer 55

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.

Question 56

Commission v UK

Answer 56

Legal status of Government guidance to employers:

ECJ struck down part of the UK’s guidelines to employers as ‘meaningless’ and incompatible with the Directive. Member States under an obligation to guarantee that workers ‘must actually benefit’ from daily and weekly rest periods provided for by the Directive.

When this came in, employers said this was too strict and would cause problems. Thought no obligation for employers to make employees to take rest breaks. Complaint made to European commission – brought action against UK government that the guidance was contrary to the EU directive. CJEU rules that the UK’S guidelines were not compatible with the directive because they suggested that there was no obligation on the employer to guarantee the worker had taken their rest, no such obligation that every worker must actually benefit from daily and weekly rest breaks.

Question 57

Mears v Safecar

Answer 57

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.

Question 58

How much annual leave is one entitled to?

Answer 58

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)

Question 59

What does Deakin and Morris believe?

Answer 59

That thw statutory scheme offers little substantive protection in regards to deductions. For example, there is no rewuirement that the employer should give the worker a hearing before making deductions.

It is posisble that the implied term of mutual trust and confidence may be assistence here, though there is no case law on the point and it is difficult to rely on an implied term in the face of clear and express rights on the part of the employer to make deductions.

Question 60

NHS Leeds v Larner

Answer 60

If sick, any untaken days will be carried over next year, irrespective of whether they asked for it or not.

Larner confirms that in relation (at least) to the four weeks’ leave offered by the Working Time Directive, if employees are off sick and do not take all of this leave, any untaken days will have to be carried over into the next holiday year and paid for upon termination of their employment. This will be the case irrespective of whether the employee requested to take the leave during the relevant leave year.

Question 61

British Airways v Williams (No 2)

SC

Answer 61

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

Question 62

Can one reconcille the case law in regards to on call?

Answer 62

The Burrow Down and Hopkins cases have fundamnetally similar facts, and the worker in Walton received much lower pay than that in British Nursing.

Lauder thought:

• is the distinction between “on call” work as the worker’s main job and “on call” work on top of the workers main job.
  
  • In this case, it was suggested that the worker’s main job was his daytime work during the work
  • It was argued that this constrasted with cases like British nursing and scottbridge because in those cases, the worker’s only job was to work the hsift in question and it was in the nature of the work that it might be intermittent, and therefore it was appropriate to regard the whole shift as working tiem attracting the NMW.
  • However, this distinction does not account for cases like Walton, in which the carer’s main job was to be available for the three-day period, or Burrow Down, in which the night sleeper was found to be entitled to the NMW for the whole shift.

Question 63

What does art 8 WTR do?

Answer 63

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.

Question 64

Walton

Answer 64

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.

Question 65

Craig v Bob

Answer 65

– 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.

Question 66

British Gas v Lock

Answer 66

CJEU agreed with ET and said otherwise if it was not paid, it would deter the worker from taking the leave, fact it was 60% of remuneration took that it was part of the normal remuneration so it was intrinsically linked (reference to the Williams test) so it was held.

Question 67

Adcock

Court of Appeal

Answer 67

What is ‘properly payable’?

where there is an identifiable sum and the employee can point to a quantified loss.

a requirement to consider making a payment under an incentive scheme did not amount to a legal obligation because: ‘the underlying premise … is that the employee is owed a specific sum of money by way of wages which he asserts has not been paid to him’ (per Wall LJ)

Brewery employees were entitled to an allocation of shares in their employer’s holding company, based on a proportion of annual group profits, at the discretion of directors. This generally resulted in each employee receiving a bonus of about 4–5% of his or her annual wage.

However, then targets were not met and no payments were made under the scheme.

a complaint of unlawful deductions from wages. This statutory regime applied to cases where an employee is owed a specific sum of money by way of wages which he or she asserts has not been paid to him or her. Accordingly, it applied to essentially straightforward claims, where the employee can point to such a quantified loss. By contrast, the claims in the present case were based on the premise that there was an obligation to replace the previous share scheme.

Question 68

Enforcement for breaching NMW

Answer 68

1. A public body may investigate employees to see if they are complying with the NMW.
   
   1. 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.

Question 69

Bear Scotland v Fulton

Answer 69

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.

Question 70

Analysis: Should there be no more opt out clause for MWT or should there just be additional safeguards

Answer 70

Commision has proposed various safeguards such as barring the employer from introducitng the opt-out at the start of the emploument, and placing an upper limit of 65 hours per week on the workinf time of an opted out worker.

Question 71

Schutz-Hoff

Answer 71

Can carry over annual leave to use it at the end of sick leave (if sick)

In this situation is it possible to carry over the leave and accrue it to be taken at the end of the period of sickness leave? Yes

Worker was on long term sick leave that in these circumstances, the worker is unable to take annual leave because sick. Found: yes if not possible to take annual leave. If not possible to take annual leave, it can carry over. If termination occurs, there is a period of payment in lieu going back (could be more than one year).

ECJ has held that the Working Time Directive allows member states to prevent workers from taking annual leave during periods of sickness, provided that they are permitted to take it at some other time. If sickness prevents a worker from taking his or her annual leave entitlement, it must be carried over into the next leave year. Workers whose employment is terminated cannot have their payment in lieu of annual leave reduced on account of a period of sickness prior to the dismissal.

Question 72

Flowers v East of England

Answer 72

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.

Question 73

Fuß v Stadt Halle

Answer 73

• any worker refusing to give agreement to working longer hours than the maximum working week must not be subjected to a detriment:

concerned a station fire officer who was also someone who drove fire engines, required to work 24 hour on call shifts. He was unhappy this was not consistent with right of 48 hour week. Having made a complaint about this, he was transferred to a desk job in control room. Held: this was a detriment, he asserted his right of 48 hour working week. And was subject to detriment, should have been able to continue as front line firefighter.

Question 74

Russell v Transocean

Answer 74

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.

Question 75

Nowadays workers who are laid off are often described as being on

Answer 75

gardening leave

provision in contract of employment where an employee is required to serve a period of notice at home

Question 76

Kenner on WTD

Answer 76

If the opt-out is to be retained in a revised form, as appears most likely, it is important to allow for greater autonomy for the individual worker to determine his or her own working time and to offer a more common sense approach to overtime. In light of the rulings in SIMAP and Jaeger, it is necessary to modernize and adapt the Directive to allow for some flexibility in on-call situations but also to recognize the need for an improved balance between work and family life. Ultimately, there needs to be less dependency on the outmoded idea of the worker being in a relationship of subordination in which he or she has to be protected by the employer. Once the present fury subsides the next stage of the process will require a much calmer assessment by all parties of the best method of adapting the Directive to the realities of global work organization in the 2 1 st Century

Question 77

Hughes

CA

Answer 77

Reg 24 was analysed here: it is where a worker is required to work through a rest break/period under reg 21.

concerned security guard who worked a shift longer than 6 hours without a rest break. Held: breach of reg 12. However, entitled to compensatory rest if a derogation applied.

CA held: reg 21(b) applied. Question, did the period have to be an uninterruped 20 minute break in accordance with reg 12 or were some other arrangements sufficient. Held: The arrangement that he could restart his break if it was interrupted - fell with reg 24(a). The court explained that although he could nto always expect an uninterrupted break, he might sometimes end up with much longer period of time away from work than 20 minutes.

Question 78

Aspden v Webbs

Answer 78

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.

Question 79

Commerzbank v Keen

Answer 79

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.

Question 80

Critisisms in Wiluszynski

Answer 80

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.

Question 81

Sood Enterprises v Healy

Answer 81

in the absence of an agreement between the parties only the four weeks paid annual leave under Reg 13 can be carried over into the next leave year (not the additional 1.6 weeks under Reg 13A) – logic is that the right to carry over leave is from EU case law and the minimum under EU law is four weeks

This carrying over of annual leave is not within regulations, only within EU case law, in strict interpretation – for period beyond year, the entitlement is only 4 weeks as this is the minimum amount under EU directive. If in second year of sickness (entitled to under contract perhaps) it would be for 4 weeks.,

Question 82

Bauer Case C569

Answer 82

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.

Question 83

Devonald

Answer 83

At common law the wage/work bargain can be enforced by civil action in debt - failure of employer to perform a contractual obligation.

If successful, the employer may be liable for an award of damages:

Question 84

Commission v UK

Answer 84

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.

Question 85

What are the derogations?

Answer 85

1. unmeasured or self-determined working time
2. general derogations
3. specific derogations:

Question 86

Pereda

Answer 86

• Annual leave can be postponed if the worker is sick during the leave

Question 87

Scottbridge Construction v Wright

2003

Answer 87

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

Question 88

El-Hajjali

Answer 88

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.

Question 89

What happens if there is no contractual term of sick pay in contract?

Answer 89

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.

Question 90

Shimizu

Answer 90

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.

Question 91

Abercrombie v Aga

Answer 91

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: