Employment Bulletin – December 2016

Workers entitled to breaks 'even if they don't request them'

Employers who make it difficult for workers to take a rest break may wish to review their practices following a ruling by the Employment Appeal Tribunal.

This applies even if employees don't actually request to take a break.

The issue arose in the case of a bus company and one its employees who worked as relief roadside controller.

The job involved monitoring and regulating bus services, making it difficult to take a break. The employee initially worked an eight and a half hour day including an unpaid half hour lunch break.

In July 2012, the company asked if he could work eight hours straight and leave half an hour earlier.

The employee complied but in 2014, he lodged a complaint saying he had been forced to work without a break to the detriment of his health. The company rejected the complaint so he brought a claim before the Employment Tribunal.

The tribunal referred to the Working Time Regulations (WTR), which states that workers are entitled to a 20-minute break if they work more than six hours. It ruled that case law on the subject meant that there had to be a request by the employee for a rest break before there could be a refusal by the employer.

The employee had not made a request and so his claim was dismissed.

The Employment Appeal Tribunal has now overturned that ruling. It held that the WTR was intended to be treated pro-actively by employers. This meant the employer was obliged to recognise a worker's entitlement to a rest break and avoid creating situations that prevented them taking that break.

There was no need for a worker to request a break for the responsibility to be triggered.

The case was referred back to the Employment Tribunal to determine whether the facts of the case meant that the employee had been denied his entitlement.

In light of the ruling, employers may wish to review their working practices to ensure no employee is placed in a position where they are unable to take a break because of their duties and responsibilities.

Sacking woman for refusing Christmas overtime 'was fair'

A tribunal has ruled that an employer was entitled to sack a woman who refused to work overtime in the run up to Christmas and who unsettled other workers with her comments and attitude.

The case involved a small food company that sells gifts and hampers. Its busiest time is the eight weeks from mid-September to mid-November in the run up to Christmas.

Staff contracts contain a clause requiring them to work overtime during busy periods.

The company asked employees to choose between four and eight Saturdays when they could work during that busy eight-week period.

One woman refused to work any Saturday mornings because she preferred to spend that time with her husband. Her managers held informal talks with her to stress the need to share the workload equally at busy times but still she refused.

She was eventually dismissed following complaints from other employees who said she had mocked those who agreed to work overtime and taunted them by saying she would have a lie-in on Saturdays.

She brought a claim of unfair dismissal but the Employment Tribunal found in favour of the company.

Its ruling said: "She had been given a contract of employment which said that she may be 'required' to work additional hours and she had no legitimate reason for refusing what she accepts was a reasonable management instruction. She just didn't want to do the work it seems.

"The consequences for the respondent (company) had the claimant not been dismissed might have been disastrous. The respondent had been extraordinarily patient. Dismissal was unarguably within the range of reasonable responses to a very difficult situation."

Train operator wins appeal against sex discrimination claim

A train company has won its appeal against a ruling that it had discriminated against a woman driver who was struggling with child care arrangements.

The company employed 549 train drivers, of whom 17 were women. Drivers were required to work shifts that changed each week. Those shifts involved working anti-social hours, including weekends.

A single mother with childcare responsibilities asked if her weekday working hours could be between 8am and 6pm and if she could be excused weekend work. The company granted some accommodation for fixed periods but refused to excuse her from weekend working on a permanent basis. The woman then brought a claim of indirect sex discrimination.

The tribunal concluded that the company had applied a provision, criterion or practice (PCP) which put her, as a single mother, at a particular disadvantage. Moreover, it had not shown that the PCP was a proportionate means of achieving a legitimate aim, having failed to consider or adopt a method of working which would yield a more gender-balanced workforce.

The Employment Appeal Tribunal has overturned that decision. It said the tribunal had erred in its approach to the issue of whether the PCP was a proportionate means of achieving a legitimate aim. It had concentrated on an aim of its own of achieving a more gender-balanced workforce.

It should instead have addressed the legitimate aim put forward by the company, which was the need to run a train service that fulfilled its contractual obligations and the rights and needs of the workforce generally.

A change in the woman's shifts would result in other drivers having to work more anti-social hours.

The issue was remitted to be considered afresh by a differently constituted tribunal.

Government accepts increases to living and minimum wage rates

The government has accepted the increases to the national living and minimum wage rates recommended by the Low Pay Commission (LPC).

It means the new National Living Wage for workers aged 25 and above will increase from £7.20 per hour to £7.50.

The new rates for the National Minimum Wage (NMW) are:

• £7.05 per hour - 21-24 years old
• £5.60 per hour - 18 - 20 years old
• £4.05 per hour - 16-17 years old
• £3.50 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.

The new rates come into effect in April.

The chairman of the LPC, Sir David Norgrove, said: "The LPC is required to make recommendations on the pace of increase in the National Living Wage such that it reaches 60% of typical earnings by 2020, subject to sustained economic growth.

"The key challenge this year has been uncertainty in relation to the economic outlook following the decision to leave the EU, and whether we needed to go more slowly than our previous intention of straight line increases in the relative value of the rate.

"For the other rates we are asked to help as many low-paid workers as possible without damaging their employment prospects."

Employers caught breaching the minimum rates have to pay the arrears within 14 days and face a penalty equal to 200% of the unpaid wages owed to workers (100% of the unpaid wages for pay periods which began before 1 April 2016) up to a maximum of £20,000 per worker.

The government also regularly publishes 'name and shame' lists of employers who fail to pay the minimum rates.