Working time
Gallagher and others v Alpha Catering Services Ltd (t/a Alpha Flight Services) [2005] IRLR 102
The Court of Appeal held that airline catering workers were not excluded from the right to rest breaks by virtue of regulation 21(c) of the Working Time Regulations 1998. That regulation provides that the right under regulation 12 to a rest break of at least 20 minutes in each six-hour period of working time does not apply 'where the worker's activities involve the need for continuity of service or production'.
The 'activities' referred to in regulation 21(c) as involving such a need are those of the worker not those of the employer. Any other interpretation, the Court of Appeal said, would allow an employer to avoid its duty by the simple expedient of not employing enough staff to cover rest breaks.
Furthermore, relatively modest fluctuations in activity that occur naturally within the daily and weekly cycles depending on the volume of air traffic were not 'unforeseeable surges of activity' such as to exclude the workers from protection. A 'surge' in the context of regulation 21(d) only occurs when there is an exceptional level of activity, beyond the fluctuations experienced within the working day and the working week.
Finally, periods of 'downtime' of at least 20 minutes were not rest breaks within the meaning of regulation 12. A 'rest break' is an uninterrupted period of at least 20 minutes that the worker can use as he pleases. A period of downtime where the worker remains at the employer's disposal cannot be a rest break. The worker must also know at the start of a rest break that it is such. A period of downtime cannot retrospectively become a rest break only because it can be seen after it is over that it was an uninterrupted period of 20 minutes.
Smith v A J Morrisroes & Sons Ltd and two others cases [2005] IRLR 72
We continue to await the 'expedited' hearing by the European Court of Marshalls Clay Products Ltd v Caulfield. In the meantime, the Employment Appeal Tribunal (EAT) has tightened the guidelines on 'rolled-up holiday pay' suggested in Caulfield.
According to the EAT, the principal guidelines in determining whether a provision for rolled-up holiday pay meets the requirements of the Working Time Regulations 1998 is that there must be mutual agreement for genuine payment for holidays, representing a true addition to the contractual rate of pay for time worked.
The regulations require more than the existence of a contractual provision for rolled-up holiday pay. In addition, a tribunal must be satisfied that holidays are actually being paid for. The best way of evidencing this is for:
A particular issue arises where an existing contract, which does not provide for payment of holiday pay, is varied (by incorporating a rolled-up holiday pay provision) into a new contract where holiday pay is to be paid. In such a case, it would be especially necessary to show that there is not just an adjustment of the figures, but a true addition to the contractual rate of pay for time worked, so as to amount to a genuine payment for holidays. The variation must be a genuine means of providing payment for holidays.
Pension loss
Port of Tilbury (London) Ltd v Birch and others [2005] IRLR 92
After reaching a finding of unfair dismissal, a tribunal rejected the submissions of both parties on the issue of pension loss, entirely on the basis that neither approach was suggested by the guidance booklet Compensation for loss of pension rights: Employment Tribunals. The tribunal made its assessment solely on the guidelines in the booklet.
The EAT overruled the tribunal's decision. In assessing compensation for loss of pension rights, there is no duty on the tribunal to follow the guidelines in the booklet. The tribunal's first duty is to consider any credible evidence and submissions put forward by the parties to ascertain whether a fair and equitable assessment of the loss of pension rights can be established on that basis. If it cannot, the tribunal must explain adequately why not. Where there is little forthcoming from the parties, the booklet may assist the tribunal in making its assessment.
Furthermore, the tribunal had erred in assessing the future loss of earnings of an employee on the basis of a longer period than that asked for in his schedule of loss. It is not necessarily an error of law for a tribunal to award more than is claimed; where an applicant is not legally represented, a tribunal may feel that it is necessary to do so for justice to be done.
However, where both parties have the benefit of legal representation, if a tribunal is minded to award more than is claimed, it is incumbent on it to do so only after having given both sides an opportunity of making submissions on the matter.
Transfer of Undertakings (Protection of Employment) Regulations
Ackinclose and others v Gateshead Metropolitan Borough Council [2005] IRLR 79
Part-time workers in a council school meals service had employment contracts that provided that their terms and conditions would be in accordance with a collective agreement. Their employment was transferred to a private company.
Subsequently, the local government collective agreement was consolidated in a new national agreement. This provided for an increased hourly rate of pay, but the private sector company did not implement that increase.
A tribunal ruled that the applicants' contracts did not allow their pay to be governed by the terms of any subsequent collective agreement that might be adopted and thus they could not benefit from improved terms provided for by a successor agreement that was not referred to or incorporated within their contracts.
Howard v Millrise Ltd (t/a Colourflow (in liquidation)) and another [2005] IRLR 84
An employee sought compensation for his employer's failure to provide him with information relating to a prospective transfer of the undertaking in which he was employed. A tribunal held that the provisions in regulation 10 of The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) apply only to appropriate representatives, which the employee was not.
The EAT overturned the tribunal's decision. If there are no recognised trade union representatives or other elected or appointed representatives in place, regulation 10 of TUPE requires the employer to invite affected employees to elect representatives and, if they fail to do so within a reasonable time, to give each individual affected employee the information required by regulation 10(2).
By Martin Edwards, Mace & Jones, Liverpool
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