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Employment Law > Wages and Working Time > Flashcards

Wages and Working Time Flashcards

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1
Q

Example case - hours where workers are ‘on call’ count as working time if they’re required to be present at the place decided by the employer

A

Jaeger [2003]

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2
Q

Definition of working time

A

Regulation 2 WTR 1993

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3
Q

Working time must not exceed 48hrs a week over a 17 week period, including overtime

A

Regulation 4 WTR 1993 - BUT… it’s not clear what steps the employer must take to fulfil this obligation

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4
Q

Held that the opt-out of the 48hr working week must expressly and freely come from the individual, not just be in the contract of employment

A

Pfieffer v Deutsches Rotes Kreisler [2005]

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5
Q

3 main functions of statutory provisions on wages

A
  1. wage and salary protection
  2. Income security for lay-offs or sickness
  3. Security for a basic level of income
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6
Q

Case for employer’s being liable for damages if they failed to perform their contractual obligations

A

Devonald [1906]

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7
Q

Common law test for whether an employer can recover overpayment

A

Kleinwort Benson v Lincoln CC - 3 stage test

  1. employer led them to believe the money was theirs
  2. they acted in good faith
  3. overpayment wasn’t caused by their own fault
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8
Q

Statutory provision which ensures that any EMPLOYEE that is subject to unnoticed deductions from their wages is paid back by the employer

A

s.12(4) ERA

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9
Q

Statutory provisions of an EMPLOYEE’S right to an itemised pay statement and any deductions

A

s. 8 ERA

s. 9 ERA

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10
Q

Statutory right for ALL WORKERS not to suffer unauthorised deductions from wages

A

s.13 ERA - must be ‘properly payable’ wages

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11
Q

Shares given to employees as part of a scheme don’t count as wages for the purposes of s.13 ERA because they aren’t an identifiable sum of money

A

Coors Brewers v Adcock [2007]

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12
Q

Excepted deductions to wages for ALL WORKERS in statute

A

s.14 ERA

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13
Q

Case which developed the rule - deductions from wages are allowed for losses suffered by the employment BUT they can’t be excessive

A

Giraud UK v Smith [2000] - unlimited contractual right to make deductions was excessive

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14
Q

Statutory provisions which state that workers have a right not to have to make payments to their employer and the exceptions

A

s. 15 ERA

s. 16 ERA

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15
Q

Example of an exception to the right not to have to make payments to their employer under s.16

A

El-Hajjali [2008] - highly skilled position so would pay if they didn’t start work - was lawful –> RARE

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16
Q

Statutory protection for retail workers

A

s.17-22 ERA

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17
Q

Deductions can be made from worker’s wages if because of industrial action part or all performance of their duties is effected

A

Wiluszynski v London Borough Tower Hamlets [1989] - employer is entitled to demand full performance of their contractual obligations

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18
Q

Minimum of paid annual leave of 5.6 weeks - no exception

A

BECTU

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19
Q

Statutory definition of wages

A

s.27 ERA

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20
Q

Deduction for wages claims are limited to 2 years of arrears

A

Deductions from Wages (Limitations) Regulations 2014

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21
Q

Established the principle that there is prima facie an entitlement to be paid wages for the period of lay off and any period of notice (not the same as a right to work)

A

Devonald [1906] - because of the availability obligation

- doesn’t apply to casual workers

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22
Q

Harsher approach to lay-off pay for workers which distinguished Devonald - allows contracts which include periods of lay-off and short term working for indefinite periods

A

Craig v Bob Lindfield [2015] - resignation was premature

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23
Q

Define ‘gardening leave’

A

The practice of requiring an employee not to attend their employer’s premises for work during their notice period. Instead, the employee is paid their full salary (inc. bonuses) to stay at home.

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24
Q

There needs to be an express ‘gardening leave’ clause for it to be enforceable against the employee during the period of notice

A

William Hill v Tucker [1998]

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25
Q

Two ‘gardening leave’ cases

A
  1. William Hill v tucker [1998]

2. Hall [2013]

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26
Q

Right to ‘guarantee payment’ if a contract doesn’t include a clause on lay-off pay

A

s.28 ERA (not in statute book for some reason) - get £28 a day for maximum of 5 days after a month of continuous employment

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27
Q

Can imply a term into the workers contract that they’re entitled to sick pay if there is sufficient evidence that they would have agreed to sick pay - low bar

A

Aspen v Webbs Poultry & Meat Group [1996]

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28
Q

Provides a basic level of income if there is no implied or express clause for sick pay in the worker’s contract

A

Statutory Sick Pay - paid via the employer

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29
Q

Example case of performance/profit-related pay as part of wages therefore there is an implied term that the employer must make the payment

A

Clark v Nomura [2000] - was able to bring common law action for debt for not being paid his bonus in his last few years of employment despite making substantial profit for the company
or Commerzbank v Keen [2006] - entitled to bonus for at least the part of the year he worked

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30
Q

Definition of worker within the scope of the National Minimum Wage Act 1998

A

s.54(3) NMWA - broad definition

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31
Q

Exceptions to the National Minimum Wage

A

s.44-45 NMWA 1998

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32
Q

Three issues with calculation of the NLW/NMW

A
  1. “sleeping time”
  2. “on call time”
  3. travelling time
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33
Q

Old approach to what counts as the whole shift for the purposes of NLW/NMW

A
  1. British Nursing Association v IRC
  2. Scottbridge Construction v Wright
    sleeping time was included as they were on call
34
Q

New approach to what counts as the whole shift for the purposes of NLW/NMW

A

Mencap v Tomlinson-Blake and Shannon v Clifton House Residential Home [2018] (aka Mencap and Shannon) - only time when the worker is required to be awake counts

35
Q

Difference between what is considered “sleeping time” for the purpose of NLW/NMW and for the purpose of the WTR

A

Mencap and Shannon [2018] and Hopkins [2011] only include hours in which the worker is awake
The WTR treats all sleeping time where the worker is ‘at the employer’s disposal’ as working time

36
Q

For NLW/NMW - for unmeasured work the question is if there is a “daily average” working hours since working time is only when they are awake

A

Walton v Independent Living Organisation [2003]

37
Q

Housekeepers provided with sleeping accommodation but had to be on call all night - only hours they were awake can count towards a NMW/NLW claim

A

Hopkins [2011] - but were successful in WTR claim

Applied earlier case of Walton v Independent Living Organisation [2003]

38
Q

4 ways of enforcement of the NMW/NLW

A
  1. HMRC can prosecute
  2. s.17 NMWA - go to ET, entitled to remuneration
  3. EMPLOYEES ONLY can claim unfair dismissal under s.104A ERA if not paid the NMW –> worker within s.104A(3)(b) ERA
  4. s.23(1)(c) NMWA - right not to suffer detriment
39
Q

Regulation providing the minimum standards for all workers concerning paid holidays, working time, rest breaks etc.

A

Working Time Regulations 1998 - which implemented the EU Working Time Directive into UK law

40
Q

Entitlement to paid annual leave for all workers

A

regs. 13-16 WTR 1998

41
Q

“rolled up” holiday pay is unlawful

A

Robinson-Steele [2006]

42
Q

Worker can’t claim entitlement to paid leave for more than one aspect of the WTR but can choose the one most favourable to them

A

reg.17 WTR 1998

43
Q

Rest periods are to be provided separately to ‘working time’ for the purposes of the WTR, sleeping doesn’t count as working time

A

Hopkins [2011]

44
Q

Definition of night worker, rest period, worker and working time for the purposes of the WTR

A

reg. 2 WTR

45
Q

ILO principle relevant to working time

A

“labour is not a commodity”

46
Q

A.Davies quote on working time

A

“the relationship between working time and pay affects the government’s capacity to control people’s working hours”

47
Q

Regulations on paid annual leave

A

reg.13-16 WTR 1998

48
Q

Regulation on maximum weekly working time

A

reg.4 WTR 1998

49
Q

Regulation on night work and patterned work

A

reg.6-8 WTR 1998

50
Q

A worker is entitled to take part of their paid annual leave as sick leave if this is more favourable to them e.g. if the pay is higher than sickness pay

A

reg.17 WTR 1998

51
Q

EU suggestions for reform of the WTD (and thus the WTR)

A
  1. maintain the more broad definition of working time under SIMAP and Jaeger but have derogations for certain sectors like healthcare
  2. introduce safeguards to opt-out agreements e.g. max hours, not providing the option for the opt-out straight away
52
Q

Employer’s are allowed to enforce a rule that holidays can only be taken when not rostered to work –> controversial

A

Russell v Transocean International Resources [2012] - oil rig workers

53
Q

Controversial case which reduces the scope of paid annual leave by allowing employer’s to count days when a worker wouldn’t normally work to count as holiday leave

A

Russell v Transocean International Resources [2012] - oil rig workers

54
Q

Three cases on what counts as ‘normal remuneration’ for the purposes of paid annual leave under reg.13 WTR

A
  1. BA v Williams [2012]
  2. Lock v British Gas [2014]
  3. Bear Scotland v Fulton [2015]
55
Q

worker who is sick during their annual leave may choose to take sick leave instead and postpone the annual leave to a later date under reg.17 WTR

A

Pereda [2009]

56
Q

Suggests that if a worker exercises their right to carry over annual leave because of sickness there is a maximum carry over period of 18 months

A

Schulte [2011]

57
Q

Worker has entitlement to pay in lieu if the employment relationship is terminated before they can take their full paid annual leave

A

reg.14 WTR

58
Q

Claimant was able to payment in lieu of 13yrs of paid annual leave he had accrued as the employer hadn’t paid him for leave

A

King v Sash Window Workshop and Dollar [2017]

59
Q

Why is King v Sash Window Workshop [2017] controversial?

A

The worker in this case was classed as self-employed for taxation purposes as many are, it makes companies vulnerable to potentially huge claims with people they’ve considered contractors for years

60
Q

Cases on what counts as ‘working time’ under reg.2 WTR

A
  1. SIMAP [2000]

2. Jaeger [2003]

61
Q

Regulations on rest periods and breaks

A

reg.10-12 WTR

62
Q

Three cases on rest breaks within reg.12 WTR

A
  1. Hughes [2011] - security guard often interrupted on his breaks
  2. Grange [2016]
  3. Crawford [2017]
63
Q

Worker doesn’t have to ask for a rest break to be entitled to a rest break under reg.12 WTR

A

Grange v Abellio London [2016]

64
Q

Cannot add up shorter breaks, e.g. of 10 mins, to comply with reg.12 WTR 20 mins break every 6hrs

A

Crawford v Network Rail [2017]

65
Q

Case which condemned government guidance that there shouldn’t be a positive obligation on employers to ensure their workers take rest breaks in line with reg.12 WTR

A

Commission v UK [2006]

66
Q

Statutory derogations i.e. exceptions to the Working Time Regulations

A

reg. 20 WTR - about working time
reg. 21- 23 WTR - about rest periods and breaks
- -> SUBJECT TO COMPENSATORY REST RULE IN REG.24 WTR - equivalent

67
Q

Example case where the exception in reg.20 WTR was tried to justify not complying with max ‘working time’ under the WTR but failed

A

Jaeger - hospital workers provided with a place to sleep, held they weren’t wholly autonomous and so the rest time regulations did apply to them

68
Q

Broad interpretations of reg.21 WTR derogations for rest periods and breaks

A
  1. Hughes - security guard

2. Gallagher - airline food servers

69
Q

Case which stated that the derogations in reg.21 have been “exhaustively enumerated”

A

Jaeger [2003]

70
Q

How long does compensatory rest for derogations in reg.21 need to be?

A

for an equivalent period

71
Q

Regulation which includes the exception to the maximum weekly working time (different from derogation)

A

reg.5 WTR

72
Q

A worker who complains about working more than 48hr weeks, or refuses to sign an opt-out, can’t be subject to a detriment (s.45A ERA)

A

fuß v Stadt Halle [2011] - firefighter didnt have an opt-out but worked more than 48hr weeks, when he asserted his rights he was demoted to a desk job

73
Q

What do opt-outs under reg.5 WTR apply to?

A

ONLY MAX WORKING WEEK - not night work

74
Q

What do opt-outs under reg.5 WTR apply to?

A

ONLY MAX WORKING WEEK - night work regulations (reg.6) still apply

75
Q

EU Commission suggestions for reform of working time regulations (WTD and therefore the WTR)

A
  1. apply the more generous working time definition from SIMAP with few derogations
  2. more safeguards for opt-out agreements e.g. max hours
76
Q

Enforcement of the WTR - workers can bring a claim before the Employment Tribunal to enforce working time limits

A

Barber v RJB Mining [1999]

77
Q

Public sector workers have the remedy of reparations for breach of the maximum working week provisions as these provisions are directly effective

A

Fuß v Stadt Halle [2011]

78
Q

Remedies - For compensation to be payable the employer needs to have REFUSED permission for the worker to exercise his/her right

A

Miles v Linkage Community Trust [2008]

NB - it’s more difficult to calculate compensation for missed rest breaks

79
Q

Statutory protection against dismissal for reason connected to a working time dispute - only for employees

A

s.101A ERA - need to show a detriment

80
Q

Held that being at home and on call isn’t part of working time but as soon as you step onto the employer’s premises it is

A

SIMAP - whereas Jaeger they were still on the premises

81
Q

Possibility for it being a criminal offence to not comply with the WTR

A

reg.29 WTR

Employment Law (4 decks)

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