preferable from a health and safety point of view. The ET found that C had not requested or been refused a 20 minute rest break, and in any event, the short breaks he was able to take were compliant with the requirement to provide compensatory rest, although it did state that N could roster breaks and provide a relief signaller. C appealed, and the EAT has allowed his appeal. It cited the only authority on the meaning of reg.24(a), Hughes v The Corps of Commissionaires Management Ltd , a decision of the Court of Appeal. Mr Hughes was a security guard working alone, who was allowed breaks from his desk, but was always on call. The judge commented in Hughes that "if a period is properly to be described as an equivalent period of compensatory rest, it must have the characteristics of a rest in the sense of a break from work. Furthermore, it must so far as possible ensure that the period which is free from work is at least 20 minutes". The EAT in Crawford noted that whilst the " mere fact" that C was on call did not mean adequate compensatory rest was not provided, as far as possible the compensatory rest break should be at least 20 minutes, and if it is not then it is not "an equivalent period of compensatory rest". There were shifts where C was required to work where there was no opportunity for a continuous 20 minute break, and it would be possible for N to provide a relief signaller to allow one. Reg.24(a) was therefore not satisfied on those shifts, and N was in breach of its obligations under the WTR. The EAT noted that "the length of the individual break is crucial", therefore there is no scope for an employer to look at this in the round and assess that overall the employee has sufficient breaks. This decision may well have practical implications for those employers where staff may be required to be on call during a rest break, and unable to take a continuous 20 minute rest break. Trade Unions will be alert to this decision and employers would be well advised to take stock of working patterns now with a view to identifying those that do not receive a continuous 20 minute rest break. Roles requiring continuous presence pose the greatest risk e.g. security, quality control, engineering and maintenance etc. Once identified, alternative break patterns should be considered prior to any challenge arising. Comment from Pinsent Masons
With thanks to Pinsent Masons for providing this useful summary.
Back to Contents
Expiry of Fixed Term Contracts and Unfair Dismissal 18 January 2018
Does an employer's compliance with the Fixed-term Employees Regulations mean it will have acted fairly when a decision is made not to renew a fixed-term contract?
Not necessarily, held the EAT in Royal Surrey County NHS Foundation Trust v Drzymala .
A locum consultant doctor had been employed on a series of fixed-term contracts. A permanent vacancy arose before her contract was due to expire. She was interviewed, along with another candidate, but not appointed. Subsequently she was given notice that her fixed term contract would not be extended. The employer's letter made no mention of a right of appeal or any alternative employment with the Trust.
The Claimant lodged a grievance and was eventually allowed an appeal. An appeal panel concluded that an earlier appeal would have made no substantive difference as to the outcome.
A tribunal found that her dismissal was unfair and the employer appealed. It relied in particular on its contention that it had complied with the non-discrimination regime in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 . Therefore the employment tribunal was wrong to conclude that the employee was unfairly dismissed. The EAT rejected this proposition. The general law on unfair dismissal applies to dismissals which arise from non- renewal of a fixed-term contract. The question of fairness of a dismissal depends in the normal way on the facts of the case and the application of the fairness test in section 98(4) of the ERA 1996.
Dismissals by non-renewal of a fixed-term contract are often potentially fair for "some other substantial reason." But they are not a special case attracting different considerations from those normally considered under section 98(4).
The Chartered Institute of Payroll Professionals
Policy News Journal
cipp.org.uk
Page 97 of 516
Made with FlippingBook - Online magazine maker