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UNLWFL DDCTNS WGS Flashcards

1
Q

What is an unlawful deduction of wages under the Employment Rights Act 1996 (ERA 1996)?

A

Section 13 of ERA 1996 prohibits employers from making deductions from an employee’s wages unless:

Authorised by statute (e.g., tax or NI contributions).

Permitted by the contract (with clear written terms).

Consented to in writing by the worker prior to the deduction.

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2
Q

What payments are considered wages under ERA 1996?

A

Wages include:

Contractual pay.

Statutory sick pay.

Holiday pay.

Bonuses (if contractual).

Exclusions: Redundancy pay, pension contributions, discretionary bonuses.

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3
Q

What are the steps to establish an unlawful deduction of wages claim?

A
  1. Is the individual a worker under s.230 ERA 1996?
  2. Was the deduction made from wages as defined by s.27 ERA 1996?
  3. Was the deduction unauthorised under s.13 ERA 1996?
  4. Was the claim brought within 3 months of the last deduction?
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4
Q

Can a claim involve multiple deductions?

A

Yes, if they form a series of deductions.

Key Cases:
Fulton v. Bear Scotland (2016): A 3-month gap broke the series.

Agnew v. Police Service of Northern Ireland (2023): A series remains intact if the deductions are factually connected, even with gaps over 3 months.

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5
Q

Can an employer reclaim mistaken overpayments?

A

Yes, but only if:

It does not violate trust or estoppel principles (e.g., Avon County Council v. Howlett (1982)).

Employees knowingly kept funds wrongly paid may face claims under the Theft Act 1968.

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6
Q

What are the time limits for unlawful deduction claims?

A

Claims must be made within 3 months of the last deduction.

Post-2015, deductions can only be reclaimed for a maximum of 2 years from the date of the claim.

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7
Q

How does the NMW relate to unlawful deductions?

A

Employers must ensure all time workers are paid at least the NMW for all qualifying hours under the National Minimum Wage Act 1998 and Regulations 2015.

Key Cases: Uber v. Aslam (2021) confirmed gig economy workers are entitled to NMW.

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8
Q

Are on-call hours included in NMW calculations?

A

Yes, if the worker:

Is on-site or near their workplace.

Cannot freely dispose of their time.

Exclusions: Time spent sleeping (unless required to work).
Regulation: NMW Regulations 2015, Regs. 30–32.

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9
Q

How did Agnew v. Police Service of Northern Ireland (2023) impact deductions?

A

The case clarified that factual connections between deductions could maintain a series, even with gaps exceeding 3 months.

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10
Q

How is worker status determined in deduction cases?

A

Tests: Personal service, mutuality of obligation, and control.

Key Cases:
Ready Mix Concrete v. Minister of Pensions (1968).

Uber v. Aslam (2021): Practical realities over contractual terms.

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11
Q

What remedies are available for successful claims?

A

Payment of unpaid wages or NMW arrears.

Compensation up to 2 years of underpaid wages.

Additional penalties if records are not provided within 14 days of request.

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12
Q

How do tribunals approach unlawful deduction claims?

A
  1. Establish worker status.
  2. Determine if wages were deducted.
  3. Assess lawfulness of deductions.
  4. Evaluate claims for series of deductions (if applicable).
  5. Apply relevant remedies.
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13
Q

What statutory protections exist for wages?

A

Employment Rights Act 1996 (ERA 1996), s.13: Prohibits unlawful wage deductions.

Wages must not be deducted unless:

  1. Required by law (e.g., tax).
  2. Agreed in the contract.
  3. Consent was provided in writing before the deduction.
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14
Q

What are examples of unlawful deductions?

A

Failure to pay minimum wage.

Non-payment for qualifying hours worked (e.g., on-call time).

Withholding holiday pay.

Non-consensual deductions for damages or expenses.

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15
Q

How does worker status impact unlawful deduction claims?

A

Section 230 ERA 1996: A worker is someone under a contract to perform services personally.

Tests include:
Personal service (Ready Mix Concrete).

Mutuality of obligation (Nethermere v. Gardiner).

Employer control (Uber v. Aslam).

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16
Q

What hours qualify for National Minimum Wage (NMW) protections?

A

All time spent working or available to work at the employer’s disposal (Reg. 30-32 NMWR 2015).

On-call time is included if:
The worker is on-site or near work.

The worker is restricted from freely using their time.

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17
Q

What constitutes a series of deductions?

A

Multiple deductions connected by common circumstances.
Case law:
Fulton v. Bear Scotland (2016): A 3-month gap broke the series.
Agnew v. Police Service of NI (2023): Overruled Fulton; factual connection maintains the series.

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18
Q

What are the time limits for unlawful deduction claims?

A

3 months from the last deduction.

Post-2015: Claims are limited to deductions within the past 2 years (Deduction from Wages Limitation Regulations 2014).

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19
Q

How do mistaken overpayments affect deductions?

A

Employers can reclaim, but restrictions apply if:
The employee reasonably believed the payment was correct (Avon v. Howlett (1982)).

Recovery violates trust (e.g., estoppel or change of position defenses).

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20
Q

What remedies are available?

A

Repayment of unlawfully deducted wages.

Compensation for unpaid NMW arrears.

Tribunal penalties if employer fails to provide records.

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21
Q

How does the gig economy affect NMW protections?

A

Uber v. Aslam (2021): Workers must be paid NMW based on hours worked, not time spent waiting for rides.

Highlights focus on practical realities over contractual terms.

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22
Q

How is on-call time treated for NMW purposes?

A

Includes time where the worker must be on-site or available.

Exclusions: If sleeping is permitted, only interruptions for work qualify.

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23
Q

How do contract terms affect deductions?

A

Employers must explicitly outline deduction terms in writing.

Ambiguous contracts can favor the employee (contra proferentem).

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24
Q

Can unpaid holiday pay form part of an unlawful deduction claim?

A

Yes, if the worker was entitled to paid leave but the employer failed to comply.

Case: British Airways v. Williams – Holiday pay must reflect normal remuneration.

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25
What steps are involved in bringing a tribunal claim for unlawful deductions?
1. Attempt workplace resolution (e.g., grievance). 2. Contact ACAS for early conciliation. 3. File a tribunal claim within 3 months of the last deduction.
26
What is the significance of Agnew v. Police Service of Northern Ireland (2023)?
Confirmed that factual connections maintain a series of deductions, even with gaps exceeding 3 months. Overruled Fulton v. Bear Scotland’s stricter interpretation.
27
Are breaks included in NMW calculations?
Paid breaks are included, but unpaid breaks (e.g., lunch) are excluded under Reg. 31 NMWR 2015.
28
What defines a worker under Section 54 NMWA 1998?
Works under a contract to personally perform services. Tests for Worker Status: Personal Service: Worker performs duties themselves unless substitution is rare. Control: Employer dictates tasks and work hours. Mutuality of Obligation: Employer must provide work; worker must accept it. Key Cases: Ready Mix Concrete v. Minister of Pensions (1968): Defined personal service and control. Autoclenz v. Belcher (2011): Focused on the practical realities of employment.
29
What protections does Section 1 NMWA 1998 provide?
Workers are entitled to NMW for all qualifying hours worked. Rates are based on age and updated annually by the government. Example: Michael’s rate (£11.44/hour in 2024) reflects his age (22+).
30
What counts as qualifying hours under NMW Regulations 2015?
Included: Time spent working, setting up, closing, and waiting for tasks (e.g., security calls). Excluded: Breaks such as lunch or rest periods. Regulations: Regs 30-32 NMWR 2015.
31
What steps should a worker take to resolve NMW disputes?
Grievance: Raise the issue internally with the employer. ACAS Conciliation: Begin early conciliation through ACAS. Tribunal Claim: File within 3 months of the most recent underpayment.
32
What remedies are available for underpayment of NMW?
Repayment of unpaid wages (up to 2 years of arrears). Compensation if records are not provided. Tribunal penalties if the underpayment is proven.
33
What evidence can workers rely on in NMW disputes?
Payslips and wage records. Employer’s compliance records. Worker’s log of hours worked or on call.
34
What is the process for raising a grievance about NMW underpayment?
Submit a written grievance. Employer must respond promptly and arrange a meeting. Workers can appeal the employer’s decision if unsatisfactory.
35
Can casual workers qualify for NMW protections?
Yes, casual workers are entitled to NMW for all hours worked, regardless of their contract type. There is no minimum service length for this entitlement.
36
Does waiting time count as working time for NMW purposes?
Yes, waiting time qualifies as working time if the worker is: Available at the employer’s disposal. Waiting for work-related tasks. Example: Francois, who waits in the stockroom at Supersight Opticians, must be paid NMW even if he is not actively helping customers, as he is available for work.
37
What periods are excluded from NMW calculations?
Rest breaks: Lunch or other unpaid breaks. Sleep-in shifts: Unless the worker is actively working. On-call time at home: Unless called upon to perform tasks.
38
Do sleep-in shifts count as working time for NMW purposes?
Only if the worker is awake and performing duties. Case: In Mencap v. Tomlinson-Blake (2021), sleep-in time was excluded unless active work was required during the shift. This decision reversed earlier rulings.
39
What did Uber v. Aslam (2021) establish about worker status and NMW?
Facts: Uber drivers were classified as independent contractors but sought recognition as workers. Decision: The Supreme Court ruled that Uber drivers were workers due to the high degree of control Uber exercised over their work. Significance: Workers are entitled to protections like NMW, holiday pay, and working time rights, focusing on the reality of the working relationship rather than contractual terms.
40
White v. Troutbeck SA (2013)
Principle: Day-to-day control is not necessary; overarching control by the employer is sufficient to establish worker status.
41
What principle did James v. Redcats (2012) establish about substitution clauses?
A substitution clause limited to situations where the worker is unable to work does not necessarily negate personal service, preserving worker status.
42
What is the significance of Carmichael v. National Power (1999) for mutuality of obligation?
The lack of mutual obligation (e.g., no requirement to provide or accept work) means the individual is not a worker. Example: Casual or "as and when required" contracts may not qualify as employment relationships.
43
What did Express and Echo Publications Ltd v. Tanton (1999) establish about substitution clauses?
A substitution clause allowing a worker to send someone else in their place negates personal service, meaning they are not a worker or employee.
44
What did Quashie v. Stringfellows (2012) establish about economic reality and worker status?
Workers who take the economic risk of their role (e.g., being paid solely by customers) may not qualify as workers under NMWA. Significance: Highlights the role of economic dependency in assessing employment status.
45
How did Pimlico Plumbers v. Smith (2018) address worker status?
The Supreme Court ruled that a plumber with a limited substitution clause was a worker because he was required to perform work personally. Significance: Reinforced the importance of personal service in determining worker status.
46
What principle did British Airways plc v. Williams (2011) establish about holiday pay?
Workers are entitled to normal remuneration during holidays, which includes regular bonuses and overtime. Holiday pay must reflect the worker’s usual income to prevent financial loss during leave.
47
How do you determine if someone is a worker under employment law?
Personal Service: The individual must perform work personally (e.g., limited substitution is allowed in Pimlico Plumbers v. Smith (2018)). Control: The employer exerts significant control over tasks (e.g., Uber v. Aslam (2021)). Mutuality of Obligation: Employer provides work; worker accepts it (Nethermere v. Gardiner (1984)).
48
What counts as "wages" under unlawful deduction claims?
Included: Pay for services (e.g., salaries, holiday pay, overtime). Excluded: Redundancy pay, discretionary bonuses, pension contributions. Case: Delaney v. Staples (1992) clarified wages must relate to work performed.
49
What is the time limit for bringing a claim for unlawful deductions?
Must be filed within 3 months of the last deduction in a series. Gaps over 3 months can break a series (Fulton v. Bear Scotland (2016)), but later overturned in Agnew v. Police Service of NI (2023).
50
Can claims for unlawful deductions extend beyond 3 months?
Yes, if deductions are factually connected, even with gaps over 3 months (Agnew v. Police Service of NI (2023)).
51
How are mistaken overpayments handled?
Employers may recover overpayments unless: The worker reasonably relied on the payment (Avon County Council v. Howlett (1982)). The worker spent the overpaid money in good faith (defense of "change of position"). Criminal liability applies if funds are knowingly withheld (Theft Act 1968).
52
What is the entitlement for statutory holiday pay?
Workers are entitled to 5.6 weeks of annual leave (4 weeks under the EU Working Time Directive + 1.6 weeks UK additional). Leave accrues monthly and carries over if sick or maternity leave prevents taking it (HMRC v. Stringer (2009)).
53
What are employers' responsibilities under the Working Time Regulations?
Ensure workers take leave or encourage them to do so. If leave isn’t taken due to employer fault, it rolls over indefinitely (Max-Planck v. Shimizu (2019)).
54
What additional protections exist for retail workers under the ERA 1996?
Deductions for cash shortages or stock losses are limited to 10% of gross wages per pay period. Full deductions can only occur on termination.
55
How is holiday pay calculated?
Reflects normal remuneration, including regular bonuses and overtime (British Airways v. Williams (2011)). Cannot be less than the usual pay received for working periods.
56
What counts as working time under NMW laws?
Includes time spent: Training. Traveling between clients. Waiting for tasks or being on call at the workplace. Case: Mencap v. Tomlinson-Blake (2021) excluded sleep shifts unless actively working.
57
What remedies are available for unlawful deductions?
Tribunal orders repayment of deducted amounts. Compensation for financial losses caused by the deduction. Overlapping claims under Part II ERA and common law.
58
How did the 2014 regulation limit wage claims?
Capped claims to 2 years of arrears (previously 6 years under common law). Part of austerity measures, reducing employer liability.
59
How does holiday pay promote public health?
Ensures rest and recuperation, preventing burnout. Courts reinforce this in cases like HMRC v. Stringer (2009) to protect workers’ well-being.
60
Determine employment status using judicial tests
Ready Mix Concrete Control/Integration Personal Service Mutuality of Obligation Economic Reality

EMPLOYMENT (4 decks)

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