Employment law

Holidays, wages and hoursCampbell & Smith Construction Group Ltd v Greenwood & others (2001) IRLR 588Company employees were entitled under their contracts to winter holidays comprising seven working days plus Christmas Day, Boxing Day and New Year's Day.

Each year, one of the seven working days given as holiday was 31 December.

When the government declared 31 December 1999 as an additional public holiday to mark the Millennium, the company took the view that their employees were already entitled to that day as paid holiday and that no change to the normal arrangements was needed.

The employees claimed that the failure to give them an additional day's paid holiday was an unauthorised deduction from their wages and a tribunal upheld the claim, on the basis that the government's announcement meant that 31 December 1999 ceased to be a working day in the winter holiday period.

The Employment Appeal Tribunal (EAT) sitting in Edinburgh took a different view.

The position was regulated by the employees' contracts: Tucker & others v British Leyland Motor Corporation Ltd (1978) IRLR 493.

It was wrong to hold that the creation of a bank holiday by statute creates a day which is, without any variation of the employment contract, anything other than a normal working day.

Since the employees had been paid for the day in question, there was no unlawful deduction of wages.

If the claim was based on an apparent entitlement to an additional day's paid holiday, that argument was hopeless, given that the contracts in this case had not been varied.

Lord Johnston said: 'We understand that the trade union successfully persuaded a number of employers to give an additional day's paid holiday, but that we consider was a voluntary act on the part of those employers not required of them by law.' This issue will again become relevant in relation to the Golden Jubilee Bank Holiday that has been declared for 3 June 2002.

Whitley & District Men's Club v Mackay (2001) IRLR 595 The EAT upheld a tribunal chairman's decision that, when a club steward was summarily dismissed for dishonesty, he was entitled under the Working Time Regulations to payment in respect of accrued holiday entitlement, even though a clause in an industry-wide collective agreement specifically provided that a worker dismissed for dishonesty would not be entitled to accrued holiday pay.

Regulation 14 requires that where a worker has leave entitlement outstanding on termination, the employer shall make a payment in lieu of either 'such sum as may be provided for the purposes of this regulation in the relevant agreement' or, where there are no relevant applicable provisions, a sum calculated according to a set formula.

There is no provision permitting the payment of no sum at all.

Thus an agreement which provides for no sum to be paid is void by reason of regulation 35(1)(a).

Wright v Scottbridge Construction Ltd (2001) IRLR 589The EAT sitting in Edinburgh held that a tribunal was wrong to hold that a night watchman was entitled to the national minimum wage only in respect of those hours when he was required to be awake for the purpose of performing particular tasks and not for all the time he was required to be on the employer's premises in his role as night watchman.Where an employer requires an employee to be present on the premises for the purpose of his duties for a specific number of hours, the employer must remunerate the employee for all those hours, even where the employee is permitted to sleep for some of the time if he wishes to do so.

It is 'wholly inappropriate' for the employer, while requiring an employee to be present for a specific number of hours, to pay him only for a small proportion of those hours in respect of the time that reflects what he is physically doing on the premises.

The provision in regulation 15(1) of the National Minimum Wage Regulations 1999, that where a worker by arrangement sleeps at or near a place of work 'time during the hours that he is permitted to sleep shall only by treated as time worked when the worker is awake for the purpose of working', does not apply where an employee who is required to be on the premises for a specified number of hours may sleep if he chooses to do so when not performing any designated tasks.Lord Johnston suggested that it might be possible to deal with such a situation by way of an average agreement for unmeasured work by reference to regulations 27 and 28 and that it might also be possible to address the issue under regulation 25 on the question of 'fair estimate'.

He added the further practical comment: 'The solution for an employer who wishes an employee to be present as a night watchman, or the equivalent, is to provide him with alternative and additional work on the premises which enables him both to provide the employer with remunerated time and also the protection of someone on the premises for security reasons.'

Laird v A K Stoddart Ltd (2001) IRLR 591Following the introduction of the national minimum wage, the company varied an employee's contract unilaterally by consolidating part of an hourly attendance allowance into the basic hourly rate of pay, taking the latter to a level above the minimum wage.

That was legitimate, but the company's unilateral cut in the attendance allowance amounted to an unauthorised deduction from wages, even though the employee had suffered no overall cut in the level of his pay.

When an employer seeks to meet his duty to pay the national minimum wage by consolidating part of an attendance allowance in to the basic hourly rate, the focus is on the effect that the new package has on allowances, not the overall package in terms of ultimate take-home pay.

Although an attendance allowance must be left out of account in calculating the national minimum wage, it can be taken into account for the purpose of calculating wages in terms of section 23 of the Employment rights Act 1996.

The exercise carried out by the employers in this case could not be distinguished from that in Davies v M J Wyatt (Decorators) Ltd (2000) IRLR 759, which decision was followed.

It was not clear from the evidence whether, by signing a revised contract, the employee had consented to the new arrangement.

He alleged that he had signed under protest, but that was not sufficient to show that he had not consented to the change.

If an employee agrees to a contractual variation even supposedly under protest, according to the EAT, he can be said to affirm it if he continues in the workplace.What is required to avoid such a conclusion is lack of consent which may be evidenced either by a refusal to accept the position or by succumbing to some form of duress or pressure which would prevent the consent having legal effect.

The latter point is one of much interest to practitioners who may be asked to consider the strength of contentions by employees that they have signed new contracts 'under protest'.

By Martin Edwards, Mace & Jones, Liverpool