EAT Working Time Regulations – TRADE UNION RIGHTS – Action short of dismissal Working Time Regulations 1998 (‘WTR’) Regulation 2(1)(a) and (c) – ‘working time’ Trade Union and Labour Relations (Consolidation) Act 1992 section 146 – detriment The Employment Tribunal having dismissed the Claimants’ claims of breach of the WTR and of detriment, the following … Continue reading Edwards and Another v Encirc Ltd (Working Time Regulations): EAT 23 Feb 2015

Working Time Regulations – VICTIMISATION DISCRIMINATION – Detriment Employment Rights Act 1996 section 45A(1)(a), (b) and (c): right not to be subjected to detriment on the grounds that a worker has (a) refused (or proposed to refuse) to comply with a requirement which the employer imposed (or proposed to impose) in contravention of the Working … Continue reading Gale and Others v Mid and West Wales Fire Service (Working Time Regulations): EAT 10 Apr 2015

EAT WORKING TIME REGULATIONS – Holiday pay Mr Lock was at the material time employed by British Gas as a salesman. His remuneration package included a basic salary plus commission which was based on the number and type of contracts he persuaded customers to enter into; in other words it was results-based commission and did … Continue reading British Gas Trading Ltd v Lock and Another (Working Time Regulations : Holiday Pay): EAT 22 Feb 2016

It is settled law that to succeed in a complaint of automatically unfair dismissal for asserting a statutory right under s.104 Employment Rights Act 1996 there must have been an infringement of a statutory right, not merely an anticipation or threat . .

The Employment Tribunal correctly held that the Claimant’s claim under Regulation 16, Working Time Regulations 1998 (‘WTR’) was presented out of time, as the time for doing so ran from the date when he contended payment ought to have been made (5 . .

Appeal by the Applicant against the Tribunal’s reserved decision, promulgated with Extended Reasons dismissing his claim for arrears of holiday pay brought against the Respondent under Regulation 14 of the 1998 Regulations. Judges: His Honour Judge Peter Clark Citations: [2003] EAT 0208 – 03 – 0107, [2003] UKEAT 0208 – 03 – 0107, EAT/0208/03 Links: … Continue reading Cavil v Barratt Homes Ltd: EAT 1 Jul 2003

EAT JURISDICTIONAL POINTS – Working outside the jurisdiction WORKING TIME REGULATIONS – Holiday pay The approach to determining whether an employee of British company who works and lives abroad falls within the territorial scope of the Employment Rights Act 1996 section 94(1) has been developed since Lawson v Serco Ltd [2006] ICR 250. The question … Continue reading Dhunna v Creditsights Ltd: EAT 3 Apr 2013

The court was asked ‘what circumstances is a worker, who has not taken paid annual leave in the relevant leave year because of absence from work on long-term sick leave, entitled to a payment in lieu?’ Judges: Mummery, Tomplinson LJJ, Henderson J Citations: [2012] EWCA Civ 1034 Links: Bailii Statutes: Working Time Regulations 1998 Jurisdiction: … Continue reading NHS Leeds v Larner: CA 25 Jul 2012

EAT National Minimum Wage Judges: His Hon Judge Birtles Citations: EAT/1097/02, [2003] EAT 1097 – 02 – 0306, [2003] UKEAT 1097 – 02 – 0306 Links: Bailii, Bailii, EAT Statutes: National Minimum Wage Regulations 1999& Jurisdiction: England and Wales Cited by: Reconsidered – MacCartney v Oversley House Management EAT 31-Jan-2006 EAT The Tribunal erred in … Continue reading South Holland District Council v Stamp and 13 others: EAT 14 Apr 2003

EAT WORKING TIME REGULATIONS JURISDICTIONAL POINTS – Claim in time and effective date of termination Working Time Regulations 1998 (‘WTR’). Time bar. Interpretation of WTR paragraph 30(2). On appeal, held that time started running on each occasion that the Claimants did not receive the daily rest to which they were entitled (or compensatory rest) and … Continue reading Scottish Ambulance Service v Truslove and Another: EAT 12 Jan 2012

EAT NATIONAL MINIMUM WAGE Temporary pub manager required to sleep on premises – Claim that hours in question should be taken into account in assessing whether she had been paid the national minimum wage – Tribunal, approaching the issue by reference to the definition of ‘working time’ in Working Time Regulations 1998, held that they … Continue reading Wray v JW Lees and Co (Brewers) Ltd: EAT 14 Jul 2011

The employer appealed against a finding that it should pay former commission agents hioliday pay for the entire period since the coming into force of the Regulations. Judges: Peter Clark J Citations: [2004] UKEAT 0657 – 03 – 1301 Links: Bailii Statutes: Employment Rights Act 1996, Working Time Regulations 1998 Employment Updated: 06 September 2022; … Continue reading Canada Life Ltd v Gray and Another: EAT 13 Jan 2004

Conjoined appeals were considered on the issue of whether holiday pay arrangements met the requirements of the Working Time Regulations, where holiday pay was in some was rolled up with normal pay. Held: Five categories were identified. Those were silent as to holiday pay; contracts excluding entitlement; contracts where holiday pay was included within standard … Continue reading Marshalls Clay Products Ltd Pearce Clarke, Sutton, Hoy v Caulfield and others, Huw Howatson Ltd Frank Studdon Ltd, Potting Constuction Ltd, Hanlin Construction: EAT 25 Jun 2003

EAT WORKING TIME REGULATIONSWorking Time Regulations. Rest breaks. Security guard (special case under regulation 21(b)). Whether receiving ‘an equivalent period of compensatory rest’ (regulation 24(a)). Whether not possible for objective reasons to grant such compensatory rest (regulation 24(b). Whether, if so, employer granting him appropriate protection.Employment Tribunal found no breach of WTR since employer met … Continue reading Hughes v The Corps of Commissionaires Management Ltd: EAT 22 Nov 2010

EAT WORKING TIME REGULATIONS – Holiday payCONTRACT OF EMPLOYMENT – Sick pay and holiday payThe employee was entitled under his contract to be paid for leave taken on the basis of his ‘average’ working hours. In context this was basic hours plus overtime hours.The Employment Appeal Tribunal is bound by the judgment of the Court … Continue reading Crossland v Corps of Commissionaires Management Ltd: EAT 18 Aug 2010

Uber drivers are workers The claimant Uber drivers sought the status of workers, allowing them to claim the associated statutory employment benefits. The company now appealed from a finding that they were workers. Held: The appeal failed (Underhill LJ dissenting) The drivers accepted the control of tee Uber app: ‘Even if drivers are not obliged … Continue reading Uber Bv and Others v Aslam and Others: CA 19 Dec 2018

When calculating the entitlement to holiday pay the apportionment had to be made on the number of working days in a year, not on the number of days in a year. The regulations required this interpretation rather than that under the Act. A consequence of using the full year might well be to apply an … Continue reading Leisure Leagues UK Ltd v Maconnachie: EAT 14 Mar 2002

EAT Working Time Regulations.Annual leave of offshore workers. Whether employers had given regulation 15 notices. Whether annual leave could be taken out of onshore ‘field breaks’.Appeal allowed and claims under regulation 30 of WTR dismissed. Regulation 15 notices had been given by employers in response to requests for annual leave and annual leave could be … Continue reading Craig and Others v Transocean International Resources Ltd: EAT 16 Dec 2008

EAT WORKING TIME REGULATIONS: Worker / Holiday PayMr Victor Jozsa (‘the claimant’) entered into a written agreement dated 1 January 2006 with Premier Groundworks Ltd (‘the respondent’) to provide groundwork services. By Clause 13 of the agreement it was provided that:-‘[the claimant] shall have the right to delegate performance of [ground works] services under this … Continue reading Premier Groundworks Ltd v Jozsa: EAT 17 Mar 2009

Judges: Lord Justice Underhill VP CA Citations: [2019] EWCA Civ 1402 Links: Bailii Statutes: Working Time Regulations 1998 Jurisdiction: England and Wales Employment Updated: 19 July 2022; Ref: scu.640145

EAT WORKING TIME REGULATIONS NATIONAL MINIMUM WAGE A care worker in a residential home who was provided with accommodation so that she could discharge her duty to be on call for the residents 11 hours a night, 7 nights a week, was entitled to treat those hours as working time for the purposes of the … Continue reading Hughes v Jones and Another: EAT 3 Oct 2008

The applicants worked under an arrangement where they received considerable payments additional to their basic pay for compulsory overtime, but the holiday pay was calculated by the employer on the basic pay. Held: The 1998 Regulations were intended to protect workers, but the directive did not require any payment over and above the contractual entitlement. … Continue reading D Bamsey and others v Albon Engineering and Manufacturing Plc: CA 25 Mar 2004

EAT The claimant was dismissed and presented a claim for unfair dismissal. In his ET1, he asserted a belief that he had been dismissed because of his assertion of a statutory right. The form referred to the respondents having tried to have the claimant work in excess of 48 hours per week. At the time … Continue reading Mclean and v Rainbow Homeloans Ltd: EAT 15 Sep 2006

Judges: Lord Justice Mummery Lord Justice Scott Baker The Right Honourable Sir Charles Mantell Citations: [2006] EWCA Civ 537 Links: Bailii Statutes: Working Time Regulations 1998 Jurisdiction: England and Wales Employment Updated: 06 July 2022; Ref: scu.241572

EAT The Tribunal erred in law in holding that the Appellant had received the rest breaks to which she was entitled under reg 12 of the Working Time Regulations 1998. Gallagher v Alpha Catering Services Ltd [2005] IRLR 102 applied.The Tribunal erred in law in holding that the Appellant was not working for the purpose … Continue reading MacCartney v Oversley House Management: EAT 31 Jan 2006

The Claimants were employed to deliver food to aircraft at airports, loading and unloading food from the aircraft. Between loadings, they were on down time – not physically working, but required to remain in radio contact with their employers, and at their disposal. The employers argued that since the employees would get 20 minutes’ rest … Continue reading Gallagher and others v Alpha Catering Services Ltd: CA 8 Nov 2004

The claimant was employed, receiving a basic pay together with commission on sales. After termination of his employment he complained that he should have been paid holiday pay based upon the average total pay rather than the basic pay. Held: The right to holiday pay arose under the Regulations, but the pay was calculated under … Continue reading Evans v Malley Organisation Ltd (t/a First Business Support): CA 27 Nov 2002

Judges: Lord Justice Pill Lord Justice Latham Holman Mr Justice Holman Citations: [2004] EWCA Civ 469 Links: Bailii Statutes: Working Time Regulations 1998 Jurisdiction: England and Wales Employment Updated: 10 June 2022; Ref: scu.195972

The employers provided ‘bank nurses’ for nursing homes and other institutions on an emergency basis, including a 24 hour telephone booking service. At night employees were based at home. The ‘duty nurse’ would answered a diverted phone call and then respond. The employee was paid an amount per shift. The Minimum Wage Compliance Team thought … Continue reading British Nursing Association v Inland Revenue (National Minimum Wage Compliance Team): CA 2002

The employer and employees disagreed about whether an element of holiday pay had been included in the rate of pay. Held: There had to be an explicit agreement between the parties before this could happen. It was not for one side unilaterally to impose its own understanding of the contract. The regulations referred to ‘contractual’ … Continue reading Gridquest Ltd T/A Select Employment, Piper Group Plc, XR Associates Ltd v K A Blackburn etc: CA 23 Jul 2002

Judges: Lord Justice Underhill VP CA Citations: [2019] EWCA Civ 269 Links: Bailii Statutes: Working Time Regulations 1998 Jurisdiction: England and Wales Employment Updated: 11 May 2022; Ref: scu.634142

JURISDICTIONAL POINTS WORKING TIME REGULATIONS The Claimant presented a claim which alleged breach of Regulation 12 of the Working Time Regulations 1998 (‘WTR’), namely the failure to provide rest breaks. The claim was dismissed, but on appeal (HHJ Eady QC) was remitted. By written submissions before the Remitted Hearing the Respondent for the first time … Continue reading Grange v Abellio London Ltd: EAT 8 Oct 2018

The respondents appealed a finding that they were not due to make additional holiday pay under the regulations. The employer asserted that the hourly rate of pay included a rolled up element of holiday and sick pay. The employee asserted that the contract documentation made no mention of such an arrangement. The employers claimed that … Continue reading Gridquest Ltd T/A Select Employment, Piper Group Plc, XR Associates Ltd v Blackburn etc: EAT 1 Nov 2000

Smartphone App Contractors did so as Workers The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual leave and other workers’ rights; or whether, as Uber contended, … Continue reading Uber Bv and Others v Aslam and Others: SC 19 Feb 2021

EAT The claimant was employed to work as a standby carpenter by the respondents, for the production of ‘Sea of Souls’, for a period of some 24 weeks. His contract provided that his services would be required for up to 6 days each week and that regarding leave, he was entitled to 6 days of … Continue reading Sumsion v BBC (Scotland): EAT 21 Mar 2007

EAT Jurisdictional Points : Worker, Employee or Neither – WORKING TIME REGULATIONS – Worker CONTRACT OF EMPLOYMENT – Whether established Employment status. The Claimant lodged a claim of unfair dismissal, age discrimination and a claim for holiday pay. The Respondent denied that he was an employee, arguing that he was a self-employed independent contractor. The … Continue reading Conroy v Scottish Football Association Ltd: EAT 12 Dec 2013

EAT PRACTICE AND PROCEDURE – Time for appealingWORKING TIME REGULATIONS – Worker1. Where an Employment Tribunal has given Judgment in 2 or more tranches, a copy of the written record of the Judgment of the Employment Tribunal which is subject to appeal and the written reasons for the Judgment, or an explanation as to why … Continue reading Yorkshire Window Company Ltd v Parkes: EAT 27 May 2010

The employee security guard appealed against a finding that his employer had allowed rest breaks as allowed under the Regulations. He worked a continuous shift during which he was allowed to use a rest area, but he remained on call. Held: The appeal failed. The break given to the appellant would not satisfy the regulation … Continue reading Hughes v The Corps of Commissionaires Management Ltd: CA 8 Sep 2011

EAT Working Time Regulations 1998 – Regulation 21This is a test case which involves the hours that pilots can be expected to work on the River Humber. The Employment Tribunal found that Associated British Ports, the Appellant, could not comply with the provisions as to rest breaks in Regulation 12 and was therefore entitled to … Continue reading Associated British Ports v Bridgeman: EAT 4 Apr 2012

Working Time Regulations – Holiday pay The appellant claimed that rolled up holiday payments made by his employers could not be set off against his right to holiday pay conferred by the Working Time Regulations 1998. The Employment Tribunal held that this depended upon whether the payments were contractual and met the criteria of transparency … Continue reading Lyddon v Englefield Brickwork Ltd: EAT 23 Oct 2007

EAT WORKING TIME REGULATIONS: WorkerIn determining whether the Claimant was a worker within the meaning of the Working Time Regulations 1998, the Employment Judge erred in taking into account whether the Claimant actually performed work or services personally rather than determining the issue by reference to the terms of the substitution clause. The substitution clause … Continue reading Archer-Hoblin Contractors Ltd v MacGettigan: EAT 3 Jul 2009

EAT The Tribunal was asked whether the claimant was a worker within the meaning of the Regulations and so entitled to their protection in receiving holiday pay.
Held: The appropriate classification of a . .

The Nursing and Midwifery Council (‘the Respondent’) appealed the Employment Tribunal’s (‘the Tribunal’) conclusion that the Claimant, a panel member chair of its Fitness to Practice Committee, was a worker within the meaning of section 230(3)(b) . .

ECJ Social policy – Directive 2003/88/EC – Article 7 – Right to paid annual leave – Precondition for entitlement imposed by national rules – Absence of the worker – Length of the leave entitlement based on the nature of the absence – National rules incompatible with Directive 2003/88 – Role of the national court Judges: … Continue reading Dominguez v Prefect of the Central Region (Social Policy): ECJ 24 Jan 2012

ECJ Social policy – Directive 92/85/EEC – Protection of the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding – Articles 5(2) and 11(1) – Worker temporarily transferred to another job during her pregnancy – Compulsory transfer because of a risk to her safety or health … Continue reading Parviainen v Finnair Oyj: ECJ 1 Jul 2010

What hours does a sleep in care worker have to be paid for. Held: Sleepers-in are to be characterised for the purpose of the Regulations as available for work, within the meaning of regulation 15 (1)/32, rather than actually working, within the meaning of regulation 3/30, and so fall within the terms of the sleep-in … Continue reading Royal Mencap Society v Tomlinson-Blake: CA 13 Jul 2018

The claimant had been an ordained minister in the church. She sought to claim unfair dismissal. The Conference replied that she was not an employee entitled to make such a claim. Held: The claimant was an employee. Judges: Maurice Kay VP, Longmore LJJ, Sir David Keene Citations: [2011] EWCA Civ 1581, [2012] 2 WLR 1119, … Continue reading The President of The Methodist Conference v Preston: CA 20 Dec 2011

Judges: Stephens LJ, Treacy LJ and O’Hara J Citations: [2019] NICA 32 Links: Bailii Statutes: Working Time Regulations (Northern Ireland) 1998 Jurisdiction: Northern Ireland Employment Updated: 10 September 2022; Ref: scu.644089

EAT WORKING TIME REGULATIONS The claimant, who worked as a security officer, made a claim for compensatory rest under the Working Time Regulations. Under regulation 12 of those regulations, it is provided that ‘where a worker’s daily working time is more than six hours he is entitled to a rest break’. Such a break is … Continue reading The Corps of Commissionaires Management Ltd v Hughes: EAT 22 Oct 2008