Can agency workers, entitled after 12 weeks to the same basic working conditions as an end-user's employees, be compensated for less holiday or unpaid breaks by a higher hourly pay?
No, held the EAT in Kocur v Royal Mail,
upholding two grounds of the Claimant's appeal.
Regulation 5 of the Agency
Workers Regulation 2010 entitled the Claimant to the same basic
working and employment conditions as the hirer's comparable employees. He got
higher hourly pay, but 2.5 days less holiday; a 1-hour rest break was only paid
for 30 minutes, not the hour. His daily pay was £1.95 higher. The tribunal
found that this offset those less favourable terms.
The EAT disagreed; an agency or hirer cannot offset a failure to confer a specific
AWR entitlement (e.g. the same annual leave) with a higher rate of pay. The
entitlement is to the same basic terms and conditions as comparable employees
on a 'term-by-term' basis with equal terms, not by comparing the overall
However, parity can be achieved in different ways, e.g. identical holiday pay
could be provided by a lump sum at assignment end, or in 'rolled-up' holiday
pay. If so, the payment mechanism must be transparent so the agency worker can
readily ascertain how remuneration relates to annual leave.
The EAT rejected a contention that the Claimant's entitlement to the same
'duration of working time' entitled him to work the precisely the same number
of hours as comparable employees (e.g. a 39-hour week); the entitlement would
be to the same working time as employees, so not getting an 8-hour shift when
the employees' maximum shift is 6 hours.
My Comment: It still amazes the lengths some employers go to, to try and get around regulations! this was never going to be seen as being compliant.
Thursday, 1 March 2018
Working Time: Time Spent 'On Call' at Home
Can stand-by time spent at home but within 8 minutes travel of a workplace be 'working time'?
Yes, held the CJEU, in Ville de Nivelles v Matzak.
The Claimant had served as a volunteer retained firefighter for the Belgian town of Nivelles since 1980. Whilst on 'stand-by duty', he had to be contactable and within 8 minutes travelling time of the fire station. All staff (professional and voluntary) were paid an annual allowance for stand-by shifts, and the Claimant claimed that he had not been paid appropriately for this time.
Amongst the issues the CJEU had to consider was whether stand-by time was working time (having decided that the Claimant was a worker). The Advocate General had suggested that the quality of the time a worker would spend on stand-by was more important that the restriction on where they should be. The CJEU rejected this, noting that the intensity of work did not determine whether time was working time or a rest period.
The CJEU went on to decide that when a worker had to be physically present at a place determined by the employer (even if their own home) and available to work at short notice, making it impossible for the worker to choose where to be, then that would come within their normal working duties. Therefore, in this case stand-by time was working time. It would then be for the national court to determine whether the Claimant had been properly paid for this time.
My Comment : This might be about a volunteer fireman in Belgium, but there is an impact for many sectors here. Not the least care homes. This topic has been simmering for some time now and it is starting to become very clear the way it is going to pan out. The tradition in the UK care home industry has been to pay only a fixed fee for "sleep ins" . It is now becoming clear that "sleep-ins" are "working time" for the purposes of pay. They should then be paid at not less than the NMW for all hours spent. This too will apply to the security or maintenance companies who have engineers "on stand-by" .
Wednesday, 7 February 2018
Friday, 2 February 2018
Expiry of Fixed Term Contracts and Unfair DismissalDoes an employer's compliance with the Fixed-term Employees Regulations mean it will have acted fairly when a decision is made not to renew a fixed-term contract?
Not necessarily, held the EAT in Royal Surrey County NHS Foundation Trust v Drzymala.
A locum consultant doctor had been employed on a series of fixed-term contracts. A permanent vacancy arose before her contract was due to expire. She was interviewed, along with another candidate, but not appointed. Subsequently she was given notice that her fixed term contract would not be extended. The employer's letter made no mention of a right of appeal or any alternative employment with the Trust.
The Claimant lodged a grievance and was eventually allowed an appeal. An appeal panel concluded that an earlier appeal would have made no substantive difference as to the outcome.
A tribunal found that her dismissal was unfair and the employer appealed. It relied in particular on its contention that it had complied with the non-discrimination regime in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. Therefore the employment tribunal was wrong to conclude that the employee was unfairly dismissed.
The EAT rejected this proposition. The general law on unfair dismissal applies to dismissals which arise from non-renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996.
Dismissals by non-renewal of a fixed-term contract are often potentially fair for "some other substantial reason." But they are not a special case attracting different considerations from those normally considered under section 98(4).
In this case, the tribunal was right to consider that the Claimant had been poorly treated by the employer when it failed to pursue a discussion about alternative roles and to provide the Claimant with a timely right of appeal. The finding of unfair dismissal was therefore upheld.
Thanks to Dr John McMullen of Wrigleys Solicitors LLP for preparing this case summary.
Working Time: Rest Breaks
Is an employer entitled to meet the 20 minute rest break requirement for workers under the Working Time Regulations by aggregating breaks of a shorter duration?
No, held the EAT in Crawford v Network Rail Infrastructure Ltd.
Regulation 12 of the Working Time Regulations 1998 provides for a rest break of not less than 20 minutes if a worker's daily working time is more than 6 hours. Regulation 21(f) provides that a worker in Railway Transport does not enjoy the protection of Regulation 12. Instead, under Regulation 24(a), the worker is entitled to an equivalent period of compensatory rest.
Mr Crawford worked as a relief cover signalman at various signal boxes in the South East. All (save one) boxes were single manned. Although Mr Crawford was not always busy, he was required to continuously to monitor and to be on call to do things when trains were going through.
He could in practice, if he wished, take short 5 minute breaks from his workstation which would amount together to well in excess of 20 minutes over the shift as a whole. But on day shifts it was not possible to have a continuous 20 minute break. The employer argued it could aggregate these shorter periods in order to meet the 20 minute break requirement. Indeed, it argued, this was more beneficial, from a health and safety point of view.
Relying on Hughes v The Corps of Commissionaires Management Ltd, the EAT held that the employer's system was not compliant. In Hughes the Court of Appeal held that there should be a proper uninterrupted break from work during a rest period and, so far as possible, that break should last at least 20 minutes. Otherwise it would not be an equivalent period of compensatory rest. It was important that, during the rest period, the worker was free from work.
Accordingly, as there was no opportunity on Mr Crawford's shifts for a single continuous break from work of 20 minutes, Network Rail were in breach of their obligations under the Working Time Regulations.
My Comment: my grateful thanks to the Daniel Barnett site for this piece.
Bill looking to ban zero-hours contracts moves a step closer: