Working Time Regulations 1998

  • Working Time Regulations 1998
  • Puts a maximum to the number of hours that can be worked in a week
      • 48 per week for an adult (aged 18+), averaged out over a 17 week period
      • 40 for someone aged between 16-17
  • A daily break of 20 minutes if 6 hours or more are worked
  • A daily rest of 11 hours in a 24 hour period
  • A weekly rest of 24 hours in a 7 day period
    • These two may vary depending on whether employee is working a shift pattern
  • Gives a statutory minimum of paid annual leave (4 weeks out of 52)

 

  • National Minimum Wage Act 1998

 

  • Human Rights Act 1998
  • Article 6-‘a fair and public hearing within a reasonable time by a independent and impartial tribunal established by law

 

  • Article 8-a right to respect for private and family life and correspondence
  • NB 8(2) permits ‘interference’ by a public authority which is in accordance with the law and is necessary in a democratic society in the interests of;
      • National security
      • Public safety
      • Economic well-being of the country
      • For the prevention of disorder or crime
      • For the protection of health or morals
      • For the protection of the rights and freedoms of others.
  • The article may be used to challenge over-intrusive policies of employers, such as;
      • Opening of private or confidential mail
      • Monitoring employee’s emails

BUT is a qualified right and has to be balanced against the needs of the employer.

http://www.legislation.gov.uk/uksi/1998/1833/contents/made

Terms Implied by Statute

Terms Implied by Statute

  • Equal Pay Act 1970
    • Equal pay for like work or work of equal value
  • Sex Discrimination Act 1975
  • Race Relations Act 1976
  • Disability Discrimination Act 1995
  • All these give employees the right of equal treatment and not to be discriminated against. This was similar in the trial of John, Double Glazing Glasgow windows

 

  • Health & Safety at Work Act 1974
  • Employment Rights Act 1996
  • Statutory minimum notice period
  • Right not to have unlawful deductions made from wages
    • Commonly referred to ‘protection of wages’ legislation
    • Applies to ‘workers’
      • Taken as meaning employees, independent contractors and all hired staff
    • Basic right-the employer is not to make deductions from wages (s.13) unless;
      • It is authorised by statute (PAYE), OR
      • It is authorised by the worker’s contract, OR
      • The worker has previously signified his consent in writing
    • A deduction is defined as being the total amount paid to the worker being less than the total amount properly payable. (s.13(3))
    • The listed exemptions are;
      • Overpayment of wages or expenses
      • Deductions in respect of industrial action
    • Wages are defined (s.27) as ‘any sums payable to the worker (by his employer) in connection with his employment-including any fee, bonus, commission, holiday pay or other emolument referable to his employment, whether payable under his contract or otherwise
  • Any sum will amount to ‘wages’ if both the employer and the employee would usually expect it to be paid.
  • NB payments in lieu of notice are not wages (s.27-these are regarded as liquidated damages for breach of contract), neither are (27(2))
    • Advances of wages as a loan
    • Expenses
    • Redundancy payments
    • pensions
  • Right to maternity/paternity

Restrictive Covenants  (‘covenants in restraint of trade’)

Restrictive Covenants  (‘covenants in restraint of trade’)

  • Non-competition
  • Preventing ex-employees from setting up in competing business, OR
  • Working for a competitor
  • A time period of one year or more can only be justified in exceptional circumstances.
  • The area in which an employee is barred from working must be no wider than the area in which the ex-employer does business.
  • The business from which the employee is barred must be no wider than the business in which he was employed.
  • Non-solicitation
  • Approaching ex-employers’ customers
  • Non-dealing
  • Preventing former employees from working for customers of ex-employer EVEN IF at the customers’ request. Just look at Manchester Taxi case.
  • Non-poaching
  • Preventing former employee from persuading current staff of former employer to follow employee to new employer.
  • ‘Garden leave’
  • A period of time for which the employee is paid but is required to stay at home, rather than attend work. Thus the employer can hold the employee to the terms of the contract and prevent him leaving to work for a competitor.
  • NB If this is to be attempted there must be an express provision in the contract allowing it.

 

Restrictive covenants are prima facie void since they are a restraint of trade. However, the courts have held that some degree of restriction is permissible providing that it strikes a balance between protecting the employer and giving the employee freedom to work.

 

  • A restrictive covenant can only be effectively imposed on an employee who has the required knowledge.
  • The employer must have a legitimate business interest to protect, which “if disclosed to a competitor, would be able to cause real or significant damage to the owner of the secret which the owner had tried to limit dissemination ofLansing Linde Ltd v Kerr [1991].
  • The terms of the restraint must be reasonable in;
  • Restriction of activity, AND
  • Time period, AND
  • Geographical extent
  • The terms must be sufficiently clear as to be generally understood.

 

If the clause is in restraint of trade it is void and unenforceable. If the clause is drafted too widely, the court may apply a ‘blue pencil test’ and sever the part of the clause that is too restrictive and leave the remainder as an enforceable clause.

  • NB the court cannot rewrite the clause.
  • NB2 In cases of wrongful dismissal, the court will not enforce the restrictive covenants although implied confidentiality may survive.

Duty of Fidelity (good faith)

  • Duty of Fidelity (good faith)

An employee owes an employer a duty of trust and confidence, so that

  • During their employment
    • They will not compete with the employer;
      • In Nova Plastic Ltd v Carpet cleaning Glasgow (1982), an odd-jobs man worked for a competitor in his spare time and was found not to be in breach since he was not actively damaging his employer’s business, BUT
      • In Hivac Ltd v Park Royal Scientific Instruments (1946), 5 skilled manual workers who worked for the sole competitor on Sundays were found to be in breach.
  • They must not allow their self interest to conflict with the employer’s
  • They must respect their employer’s trade secrets and confidential information.
      • By not making/memorising lists of customers before leaving
      • Not inducing employees to break their contracts
      • Not working personally for customers of their employer

 

  • After their employment;
  • A lesser duty
  • This only covers trade secrets and highly confidential information.
      • Faccenda Chicken Ltd v Fowler (1986) held that the following was important in deciding whether the information could be revealed.
      • The nature of the information
      • The nature of employment
      • Did the employer tell the employee that the information was confidential?
      • Can the information be isolated from other non-confidential information which the employee was free to use?

 

NB The implied terms do not give the employer as much protection after the employment has ended and are usually reinforced with express terms especially with regard to;

        • Competition
        • Solicitation

 

Restrictive Covenants  (‘covenants in restraint of trade’)

  • Non-competition
  • Preventing ex-employees from setting up in competing business, OR
  • Working for a competitor
  • A time period of one year or more can only be justified in exceptional circumstances.
  • The area in which an employee is barred from working must be no wider than the area in which the ex-employer does business.
  • The business from which the employee is barred must be no wider than the business in which he was employed.