The Claimants, who worked at a caravan site, were expected to be on-call after their shifts (which finished at between 4.30pm and 8pm) until 8am the following morning. The Claimants argued that whilst on-call they were working on "time work" and so entitled to be paid the National Minimum Wage. The sleep-in exception in the Mencap case did not apply because they were not on a sleep-in. The EAT upheld the Employment Judge's finding that between the end of their shift and 10pm they were working on time work because their responsibilities included showing round prospective customers and welcoming late arrivals. They were therefore entitled to be paid the NMW for that period. The Claimants were not, however, required to carry out that work after 10pm, unless they were called out for an emergency for which they were paid. After 10pm, they were therefore not working on time work unless called out and were not entitled to be paid whilst merely on-call.
The full judgment Frudd v Partington Group can be read at Gov.UK.
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Contracts of Employment 17 April 2019
The Employment Appeal Tribunal has concluded that a contract that allows for a discretionary bonus, can be varied so the employee becomes contractually entitled to that bonus.
In the case Bluestones Medical Recruitment Ltd v Swinnerton, Mr Swinnerton worked for Bluestones in a number of jobs before becoming General Manager. In previous roles, his contract allowed for discretionary bonuses. Once he became GM it was intended he be paid a monthly bonus, based on the company's profits. It was also expected he would become a shareholder. The bonus payments were made as loans, which he would later repay from his dividends.
Before becoming a shareholder, Mr Swinnerton was suspended and then dismissed. During his suspension, Bluestones stopped paying the bonuses. The tribunal concluded this was an unlawful deduction of wages.
The EAT found the tribunal hadn't adequately identified the legal mechanism through which the contract was changed or what the new contract required. This failure also meant there was no proper conclusion on whether the payments should be classified as loans and therefore not considered deductions from wages by s27(2)(a) of the Employment Rights Act . The case was therefore remitted to a fresh tribunal.
With thanks to Daniel Barnett's Employment Law Bulletin for its coverage of this case.
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Unite secures victory in HS2 overtime and holiday entitlement 11 April 2019
Unite, the construction union, has secured agreement ending the scandal of workers on HS2 being denied the correct overtime rates and deprived of the correct holiday entitlement.
On 26 March 2019 Unite reported that it had discovered workers on the government’s flagship HS2 development are being systematically denied their proper holiday entitlement and workers are losing over a hundred pounds a week in underpaid overtime pay. Unite received multiple payslips from workers employed by labour supplier Bowercross Construction Ltd (BCL) on the enabling work being undertaken at Euston by the Costain/Skanska Joint Venture (CSJV), which reveals the denial of nationally agreed holiday entitlement and overtime rates.
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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