Under the National Minimum Wage Act and Regulations workers may only claim for hours they are awake for the purpose of workingSouth Manchester Abbeyfield Society Ltd v Hopkins & Anor [2010] UKEAT 0079_10_3011 | |||
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16/12/2010
The claimant care workers after not being paid the minimum wage when sleeping over overnight at work (on call) originally claimed for deductions of wages under Part II of the Employment Rights Act 1996 following an alleged failure to pay the national minimum wage contrary to the the 1998 Act and National Minimum Wage Regulations 1999 (NMWR). This was found out of time but the claim for breach of contract under the Employment Tribunals (Extension of Jurisdiction Order)went ahead. The ET found that the Working Time Regulations were engaged and the Claimants (one of whom doing 'time work' and the other 'salaried hours')were entitled to back-pay whilst at work at night, that the claimants who had put in their claims when they were made redundant, suffered from a breach of contract of employment. The claimants were awarded compensation but the EAT has overturned that finding. Regarding the (disputed) frequency and duration of callouts the Tribunal made no finding but stated "they were above the threshold in McCartney v Oversley House Management [2006] ICR 510 where the EAT decided that time spent on calls are not paid when 'so insignificant as to be trifling'. It was argued by the Appellant employer that as the claims for breach of contract were not brought under the Working Time Regulations 1998 ('WTR') then no reliance could be placed on the regulations. The Claimants relied on the British Nursing case but the EAT distinguished that case whereby the call workers assigned bank nurses as a 24-hour service during the day from offices and at night from the workers' homes. The Court of Appeal found the workers were working throughout the nightshift so that there was no difference between the day and night workers. The Court of Appeal did not therefore regard reg 15 as arising as this regulation only related to those on call waiting to work and therefore needing to be paid the minimum wage for the waiting hours. The EAT found that caselaw showed a difference between a situation whereby the employee, with or without sleeping accommodation, works just by being present at the employer's premises (e.g. a nightwatchman) and where the employee provided with sleeping accommodation is only on call. Where the employee is only on call he cannot claim for all the hours spent on call under the NMW unless awake for work. There was no possibility of compensation for breach of maximum working week or rest-break regulations because this was out of time. The judgment of the Employment Tribunal was set aside and the case remitted to a fresh tribunal (owing to problems in determining facts after Lady Justice Smith in Taylor v OCS Group [2006] ) to determine how many hours the claimants spent awake for the purposes of work and whether in the light of this further payments were due under the NMWA. Some cases referred to: SIMAP v Conselleria de Sanidad and anor [2001] ICR 1116 (ECJ); British Nursing Association v Inland Revenue [2002] EWCA Civ 994; Walton v Independent Living Organisation [2003] EWCA Civ 199 (included in the bundle but not referred to) Scottridge Construction Ltd v Wright [2003] IRLR 21; Landeshauptstadt Kiel v Jaeger [2004] ICR 1528 (ECJ); Anderson v Jarvis Hotels plc UKEATS/0062/05/RN; Burrow Down Support Services Ltd v Rossiter [2008] ICR 1172; Hughes v Graylyns Residential Home UKEAT/0159/08/MAA; Smith v Oxfordshire Learning Disability NHS Trust [2009] ICR 1395. |
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| Transcript of the judgement:- South Manchester Abbeyfield Society Ltd v Hopkins & Anor [2010] UKEAT 0079_10_3011 | |||
| 2010 When less favourable treatment amounting to a detriment follows a protected disclosure the employer must prove it was "in no sense whatsoever on the ground of the protected disclosure" - Fecitt & Ors v. NHS Manchester [2010] UKEAT 0150_10_2311 Establishing a contract of service and thence unfair dismissal remains a tall order for an agency worker - Tilson v Alstom Transport [2010] EWCA Civ 1308 The duty of fidelity and fiduciary obligations must remain separate and are in any case not imposed on employees; fidelity does not extend to reporting one's own or fellow employees' misconduct - Lonmar Global Risks Limited v West and Others [2010] EWHC 2878 (QB) Employers don't need to justify age discriminatory behaviour in terms of "legitimate social policy objectives" - Seldon v. Clarkson Wright & Jakes [2010] Court of Appeal A2/2009/0149 Those seeking to profit out of the discrimination legislation will face costs - Berry v. Recruitment Revolution [2010] UKEAT 0190_10_0610 Court of Appeal re-interprets clause of BA contract to avoid 'disastrous' consequences for the firm (the employees must work harder and more stressful shifts) - Malone & Ors v British Airways Plc [2010] EWCA Civ 1225 EAT questions 'cost plus' approach to justification in discrimination - Woodcock v Cumbria Primary Care Trust [2010] UKEAT 0489_09_1211 Workers whose employment contract was made with a company that did not actually employ them are still entitled to TUPE protections upon transfer. The "Transferor" is the company in the group that they actually worked for - Albron Catering BV v FNV Bondgenoten C-242/09 Being incorrectly summarily dismissed for misconduct still amounted to a fair but wrongful dismissal - Weston Recovery Services v Fisher [2010] UKEAT 0062_10_0710 Not unfair dismissal despite having occurred during the protected consultation period contrary to s. 188 TULRCA s.188(8) - Hammonds LLP & Ors v Mwitta [2010] UKEAT 0026_10_0110 The Court of Appeal refers the timing of worker consultation under TUPE to the ECJ - United States of America v Nolan [2010] EWCA Civ 1223 A redundancy consultation means explaining the scoring to the employee and seriously considering his comments - Pinewood Repro Ltd v. Page [2010] UKEAT 0028_10_1310 The effective date of termination is not necessarily when a letter is received, but when it can reasonably be expected to have been read - Gisda Cyf v Barratt [2010] UKSC 41 For unfair dismissal length of service purposes, working under a different contract did not break continuity of employment - Hussain v Acorn Independent College Ltd [2010] UKEAT 0199_10_0809 The previous employer will be liable for victimsing his worker through a reference to a prospective employer - Bullimore v Pothecary Witham Weld Solicitors & Anor [2010] UKEAT 0189_10_2109 An employer's allegations must be spelled out. Euphemistic speech is not acceptable when disciplining or dismissing workers. - Celebi v Scolarest Compass Group UK & Ireland Ltd [2010] UKEAT 0032_10_2807 Table listing the changes to UK discrimination legislation being introduced by the Equality Act 2010 ET is allowed flexibility in deciding whether the burden of proof has shifted - Canadian Imperial Bank of Commerce v. A Beck [2010] UKEAT 0141_10_2408 The employer's ability to pay is irrelevant - Tao Herbs & Acupuncture Ltd v Jin [2010] UKEAT An absolute contractual right of substitution undermines the possibility of worker status - Community Dental Centres Ltd v. Sultan- Darmon [2010] UKEAT 0532_09_1208 Pension loss: "simplified" and "substantial" compensatory approaches - Sibbit v The Governors of St Cuthbert's Catholic Primary School [2010] UKEAT 0070/10/ZT TUPE: Failure to consult doesn't give an individual the right to claim unfair dismissal - Nationwide Building Society v. Benn & Ors [2010] UKEAT 0273_09_2707 Limits on Redundancy Payments affecting older workers are not Age Discrimination - Kraft Foods UK Ltd v. Hastie [2010] UKEAT 0024_10_0607 Employees must be informed of changes to collective agreement terms - Worrall v Wilmott Dixon Partnership [2010] EAT UKEAT/0521/09/DM An employer can not plead its own irrationality in seeking to amend a compromise agreement - Gibb v Maidstone & Tunbridge Wells NHS Trust [2010] EWCA Civ 678 Time limits may be extended following wrong information from an employer (but not an adviser) - Northamptonshire County Council v Entwhistle [2010] UKEAT/0540/09/ZT Even after the Unite decision unions must continue to careful with TULRCA compliance - British Airways Plc v Unite the Union [2010] EWCA Civ 669 A disability discrimination claim under the DDA must be for actual not perceived disability - Aitken v. The Commissioner of Police of The Metropolis [2010] UKEAT 0226_09_2106 A GP's opinion on depression is valid in an employment tribunal - J v DLA Piper UK LLP [2010] UKEAT 0263_09_1506 University and College Union (UCU)backs antisemite who incited violence against jews Retirement and re-employment is a reasonable adjustment - Chief Constable of South Yorkshire Police v. Jelic [2010] UKEAT 0491_09_2904 Histadrut condemns violence, describes extent of cooperation with palestinian trade union Palestinian General Federation of Trade Unions (PGFTU) Where an employer is contemplating disciplinary action the thoroughness of the investigation needs to reflect the seriousness of the consequences to a worker - Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 Damages are not limited to the term of the breached fixed term contract (but reflect the total loss caused) - Edwards v Chesterfield Royal Hospital NHS Foundation Trust [2010] EWCA Civ 571 The disclosing of without prejudice communications - Woodward v Santander [2010] UKEAT/0250/09/ZT Criterion for awarding uplifts under the Dispute Resolution Procedures - Lawless v Print Plus [2010] UKEAT/0333/09/JOJ A local council is a single establishment thus allowing white collar workers to use manual workers as comparators - City of Edinburgh v Wilkinson & ors [2010] UKEATS/0002/09/BI A compromise agreement can be valid even though the claimant does not understand it - McWilliam & Others v Glasgow City Council When using the closed procedure for national security purposes the claimant must still be provided with the gist of the employer's case - Home Office v Tariq [2010] EWCA Civ 462 An employer can not repair a fundamental breach of contract. It is up to the employee whether to resign and claim constructive unfair dismissal. - Buckland v Bournemouth University Higher Education Corp [2010] EWCA Civ 121 A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidence - Bateman & Ors v. Asda Stores Ltd [2010] UKEAT 0221_09_1102 A worker can not claim constructive dismissal if he is in breach of the duty of trust and confidence - Aberdeen City Council v McNeill [2009] UKEAT 0037_08_1011 BA dress code forbidding the open display of faith symbols was not discriminatory - Eweida v British Airways Plc [2010] EWCA Civ 80 When deciding whether to allow an amendment the lateness of the application is only one factor to be taken into account by the employment judge - Baker v The Commissioner of Police of The Metropolis [2010] UKEAT 0201_09_0502 National courts should should strike down discriminatory legislation - Seda Kücükdeveci v Swedex GmbH & Co. KG [2010] ECJCase C-555/07 Judges restrict employers' use of the illegality defence against employee unfair dismissal claims - SAN LING CHINESE MEDICINE CENTRE v LIAN WEI JI - [2010] EAT UKEAT/0370/09/ZT There is a right to legal representation at a disciplinary which might result in the loss of the right to practise a profession - G, R (on the application of) v X School & Ors [2010] EWCA Civ 1 Cabin crew spending 5% of their time in the UK were considered to have worked partly at an establishment in Great Britain. - BA v Mak EAT [2010] UKEAT/0055/09/SM The 'genuine occupational requirement' rule may apply to a maximum age for employment - Wolf v Stadt Frankfurt am Main [2010] Case C-229/08 ECJ Different dress codes do not necessarily amount to sex discrimination - Dansie v. The Commissioner of Police for The Metropolis [2009] UKEAT Certain conditions must exist for the obligation to carry out a risk assessment for a pregnant worker to arise - ONeill v. Buckinghamshire County Council [2010] UKEAT 2009 An employment tribunal may decide if a compromise decision is unenforcable - Industrious Ltd v Horizon Recruitment Ltd & Anor [2009] UKEAT Registrar claiming right to refuse to officiate at civil weddings loses religious discrimination case - Ladele v London Borough of Islington [2009] EWCA Civ 1357 A philosophical belief based on science is protected by the Employment Equality (Religion or Belief) Regulations 2003 - Grainger Plc v Nicholson [2009] UKEAT/0219/09/ZT Christian counsellor who would not help same sex couples was not discriminated against - McFarlane v Relate Avon Ltd [2009] UKEAT 0106_09_3011 Under TUPE the obligation to inform always applies, even when no measures are contemplated relating to the transfer - Cable Realisations Ltd v GMB Northern [2009] UKEAT The Court of Appeal rules on Harassment and 'Oppressive and Unacceptable' behaviour Veakins v Kier Islington Ltd [2009] EWCA Civ 1288 For s4A(3) of the DDA to apply the employer must have known (or ought to have known) that the employee was disabled and that the disability would affect him in the manner described in section 4A(1) - DWP v Alam [2009] UKEAT 0242_09_0911 A discrimination case may not proceed on the mere possibility that evidence might emerge during cross examination - ABN Amro Management Services v Hogben [2009] UKEAT 0266_09_0111 In cases of discriminatory dismissal tribunals may reduce compensation if the worker would in any event have been dismissed - Chagger v Abbey National Plc & Anor [2009] EWCA Civ 1202 |
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