10 October 2012
Employment Appeal Tribunal (EAT)
If an employee is not required to work on a day they would normally work, and the reason for that is a reduced need for that work or an occurrence affecting the normal working of the employer's business, then the employee is entitled to a statutory ‘guarantee payment' (currently £23.50 per day for 5 days in any 3 month period). But if the hours of work are changed by agreement because of a reduction in work, then any days not worked because of that agreement do not attract the guarantee payments. That is because those days not worked are not days that they would normally work: their normal working days have been changed by agreement.
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2 November 2012
Employment Appeal Tribunal (EAT)
HHJ McMullen QC, MR D Evans and Mr J R Rivers
Payments which are genuinely in respect of expenses, however generous they may be, are not ‘wages' for the purposes of the rules on unlawful deductions from wages.
This case concerned a dispute about the interpretation of two agreements whereby the two employees were seconded from the Australian parent company to a UK subsidiary company. The employees argued that the contracts they signed entitled them to a food allowance and a housing allowance on top of their salary. The Employment Appeal Tribunal concluded that the contracts made clear those payments were included within the remuneration figure quoted in the contracts. On that basis, their claims failed. But they would have failed anyway because those payments were payments for expenses and so did not constitute ‘wages'. The tribunal therefore had no jurisdiction to deal with the claim for unlawful deductions from wages in respect of the failure to pay those expenses on top of the overall remuneration figure.
13 July 2012
Queen's Bench Division
The Working Time Directive does not apply to mobile workers except to require Member States to ensure mobile workers are entitled to adequate rest. Two other European measures, the Road Transport Regulation and the Road Transport Working Time Directive impose obligations on commercial drivers and require a system of penalties for breach. These were implemented in the UK by the Road Transport (Working Time) Regulations 2005. These imposed obligations on drivers in respect of breaks and rest periods, enforceable with criminal penalties.
In this case the union argued that drivers should have recourse to an employment tribunal, as non-mobile workers have under the Working Time Regulations 1998. The union's principal argument relied on the ‘principle of equivalence' - that Member States should ensure that workers have the same rights to enforce European law as they have to enforce equivalent domestic rights.
The High Court disagreed. The principal of equivalence did not require such rights to be provided, as there were no equivalent domestic rights. The primary purpose of the European legislation was the organisation of road transport and road safety. Anyway, mobile workers who were denied entitlement to breaks could sue for breach of the employer's implied duty not to require employees to carry out their duties in an illegal way; and anyone penalised by their employer for insisting on taking the required breaks could rely on the whistle-blowing rules in the Employment Rights Act 1996.
24 July 2012
Court of Appeal
Maurice-Kay, Longmore and Toulson LJJ
A GP who undertook cosmetic surgery procedures at clinics run by the Hospital Medical Group (‘HMG') was held to be a ‘worker' for the purposes of the Working Time Regulations and the legislation on unlawful deductions from wages.
Dr W's main job was as a GP but he also attended HMG's clinics to provide hair restoration services to patients introduced to him by HMG. The arrangement was terminated as a result of concerns about his performance. He argued that he was a worker for the purposes of the Working Time Regulations and therefore should have been paid holiday pay. He also complained that unlawful deductions had been made from his wages.
27 June 2012
Court of Appeal
Pill, Lloyd and Lewison LJJ
There is an implied duty of fidelity on employees to have regard to the interests of their employer, but this duty does not prevent employees from making plans, during their employment, to compete with the employer after their employment ends. Nor is it a breach of that duty to contact customers or potential customers of the employer with a view to obtaining business from them after employment ends. That implied duty of fidelity contrasts with the fiduciary duty of directors to subjugate their own interests to those of the employer.