Wages and Working Time Flashcards
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
Jaeger [2003]
Definition of working time
Regulation 2 WTR 1993
Working time must not exceed 48hrs a week over a 17 week period, including overtime
Regulation 4 WTR 1993 - BUT… it’s not clear what steps the employer must take to fulfil this obligation
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
Pfieffer v Deutsches Rotes Kreisler [2005]
3 main functions of statutory provisions on wages
- wage and salary protection
- Income security for lay-offs or sickness
- Security for a basic level of income
Case for employer’s being liable for damages if they failed to perform their contractual obligations
Devonald [1906]
Common law test for whether an employer can recover overpayment
Kleinwort Benson v Lincoln CC - 3 stage test
- employer led them to believe the money was theirs
- they acted in good faith
- overpayment wasn’t caused by their own fault
Statutory provision which ensures that any EMPLOYEE that is subject to unnoticed deductions from their wages is paid back by the employer
s.12(4) ERA
Statutory provisions of an EMPLOYEE’S right to an itemised pay statement and any deductions
s. 8 ERA
s. 9 ERA
Statutory right for ALL WORKERS not to suffer unauthorised deductions from wages
s.13 ERA - must be ‘properly payable’ wages
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
Coors Brewers v Adcock [2007]
Excepted deductions to wages for ALL WORKERS in statute
s.14 ERA
Case which developed the rule - deductions from wages are allowed for losses suffered by the employment BUT they can’t be excessive
Giraud UK v Smith [2000] - unlimited contractual right to make deductions was excessive
Statutory provisions which state that workers have a right not to have to make payments to their employer and the exceptions
s. 15 ERA
s. 16 ERA
Example of an exception to the right not to have to make payments to their employer under s.16
El-Hajjali [2008] - highly skilled position so would pay if they didn’t start work - was lawful –> RARE
Statutory protection for retail workers
s.17-22 ERA
Deductions can be made from worker’s wages if because of industrial action part or all performance of their duties is effected
Wiluszynski v London Borough Tower Hamlets [1989] - employer is entitled to demand full performance of their contractual obligations
Minimum of paid annual leave of 5.6 weeks - no exception
BECTU
Statutory definition of wages
s.27 ERA
Deduction for wages claims are limited to 2 years of arrears
Deductions from Wages (Limitations) Regulations 2014
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)
Devonald [1906] - because of the availability obligation
- doesn’t apply to casual workers
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
Craig v Bob Lindfield [2015] - resignation was premature
Define ‘gardening leave’
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.
There needs to be an express ‘gardening leave’ clause for it to be enforceable against the employee during the period of notice
William Hill v Tucker [1998]
Two ‘gardening leave’ cases
- William Hill v tucker [1998]
2. Hall [2013]
Right to ‘guarantee payment’ if a contract doesn’t include a clause on lay-off pay
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
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
Aspen v Webbs Poultry & Meat Group [1996]
Provides a basic level of income if there is no implied or express clause for sick pay in the worker’s contract
Statutory Sick Pay - paid via the employer
Example case of performance/profit-related pay as part of wages therefore there is an implied term that the employer must make the payment
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
Definition of worker within the scope of the National Minimum Wage Act 1998
s.54(3) NMWA - broad definition
Exceptions to the National Minimum Wage
s.44-45 NMWA 1998
Three issues with calculation of the NLW/NMW
- “sleeping time”
- “on call time”
- travelling time
Old approach to what counts as the whole shift for the purposes of NLW/NMW
- British Nursing Association v IRC
- Scottbridge Construction v Wright
sleeping time was included as they were on call
New approach to what counts as the whole shift for the purposes of NLW/NMW
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
Difference between what is considered “sleeping time” for the purpose of NLW/NMW and for the purpose of the WTR
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
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
Walton v Independent Living Organisation [2003]
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
Hopkins [2011] - but were successful in WTR claim
Applied earlier case of Walton v Independent Living Organisation [2003]
4 ways of enforcement of the NMW/NLW
- HMRC can prosecute
- s.17 NMWA - go to ET, entitled to remuneration
- EMPLOYEES ONLY can claim unfair dismissal under s.104A ERA if not paid the NMW –> worker within s.104A(3)(b) ERA
- s.23(1)(c) NMWA - right not to suffer detriment
Regulation providing the minimum standards for all workers concerning paid holidays, working time, rest breaks etc.
Working Time Regulations 1998 - which implemented the EU Working Time Directive into UK law
Entitlement to paid annual leave for all workers
regs. 13-16 WTR 1998
“rolled up” holiday pay is unlawful
Robinson-Steele [2006]
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
reg.17 WTR 1998
Rest periods are to be provided separately to ‘working time’ for the purposes of the WTR, sleeping doesn’t count as working time
Hopkins [2011]
Definition of night worker, rest period, worker and working time for the purposes of the WTR
reg. 2 WTR
ILO principle relevant to working time
“labour is not a commodity”
A.Davies quote on working time
“the relationship between working time and pay affects the government’s capacity to control people’s working hours”
Regulations on paid annual leave
reg.13-16 WTR 1998
Regulation on maximum weekly working time
reg.4 WTR 1998
Regulation on night work and patterned work
reg.6-8 WTR 1998
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
reg.17 WTR 1998
EU suggestions for reform of the WTD (and thus the WTR)
- maintain the more broad definition of working time under SIMAP and Jaeger but have derogations for certain sectors like healthcare
- introduce safeguards to opt-out agreements e.g. max hours, not providing the option for the opt-out straight away
Employer’s are allowed to enforce a rule that holidays can only be taken when not rostered to work –> controversial
Russell v Transocean International Resources [2012] - oil rig workers
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
Russell v Transocean International Resources [2012] - oil rig workers
Three cases on what counts as ‘normal remuneration’ for the purposes of paid annual leave under reg.13 WTR
- BA v Williams [2012]
- Lock v British Gas [2014]
- Bear Scotland v Fulton [2015]
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
Pereda [2009]
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
Schulte [2011]
Worker has entitlement to pay in lieu if the employment relationship is terminated before they can take their full paid annual leave
reg.14 WTR
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
King v Sash Window Workshop and Dollar [2017]
Why is King v Sash Window Workshop [2017] controversial?
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
Cases on what counts as ‘working time’ under reg.2 WTR
- SIMAP [2000]
2. Jaeger [2003]
Regulations on rest periods and breaks
reg.10-12 WTR
Three cases on rest breaks within reg.12 WTR
- Hughes [2011] - security guard often interrupted on his breaks
- Grange [2016]
- Crawford [2017]
Worker doesn’t have to ask for a rest break to be entitled to a rest break under reg.12 WTR
Grange v Abellio London [2016]
Cannot add up shorter breaks, e.g. of 10 mins, to comply with reg.12 WTR 20 mins break every 6hrs
Crawford v Network Rail [2017]
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
Commission v UK [2006]
Statutory derogations i.e. exceptions to the Working Time Regulations
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
Example case where the exception in reg.20 WTR was tried to justify not complying with max ‘working time’ under the WTR but failed
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
Broad interpretations of reg.21 WTR derogations for rest periods and breaks
- Hughes - security guard
2. Gallagher - airline food servers
Case which stated that the derogations in reg.21 have been “exhaustively enumerated”
Jaeger [2003]
How long does compensatory rest for derogations in reg.21 need to be?
for an equivalent period
Regulation which includes the exception to the maximum weekly working time (different from derogation)
reg.5 WTR
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)
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
What do opt-outs under reg.5 WTR apply to?
ONLY MAX WORKING WEEK - not night work
What do opt-outs under reg.5 WTR apply to?
ONLY MAX WORKING WEEK - night work regulations (reg.6) still apply
EU Commission suggestions for reform of working time regulations (WTD and therefore the WTR)
- apply the more generous working time definition from SIMAP with few derogations
- more safeguards for opt-out agreements e.g. max hours
Enforcement of the WTR - workers can bring a claim before the Employment Tribunal to enforce working time limits
Barber v RJB Mining [1999]
Public sector workers have the remedy of reparations for breach of the maximum working week provisions as these provisions are directly effective
Fuß v Stadt Halle [2011]
Remedies - For compensation to be payable the employer needs to have REFUSED permission for the worker to exercise his/her right
Miles v Linkage Community Trust [2008]
NB - it’s more difficult to calculate compensation for missed rest breaks
Statutory protection against dismissal for reason connected to a working time dispute - only for employees
s.101A ERA - need to show a detriment
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
SIMAP - whereas Jaeger they were still on the premises
Possibility for it being a criminal offence to not comply with the WTR
reg.29 WTR
