This weeks case roundup
National Minimum Wage payable
Wright v Scottbridge Construction, IRLR 589,EAT
Wright, a night watchman, worked seven nights a week between 5pm and 7am.
Although he performed some menial tasks his principal duty was to respond if
intruders triggered the alarm. When not actually working he was allowed to
sleep and watch TV and facilities were provided.
Wright received £210 a week and unsuccessfully claimed that this fell short
of the hourly rate of the National Minimum Wage (NMW). The tribunal relied on a
provision in the NMW regulations that the NMW is not payable for hours where, by
agreement, a worker can and does sleep at work. It held that Wright was
entitled to be paid only for the hours he had to be awake for the purposes of
working; about four hours a night.
Wright successfully appealed to the EAT. As Wright was required to be on the
premises for 14 hours a night he had to be paid for them even though he was
permitted to sleep for some of the time. He could still perform his duties
while asleep, since the alarm would wake him up. The provision relied on by the
tribunal did not apply, since it was aimed at a different situation, namely one
in which an employer allows a worker to take time off during the working period
for sleep and provides facilities for doing so.
Date of dismissal relevant for claim
Stolt Offshore v Miklaszewicz, unreported, May 2001, EAT (Scotland)
Miklaszewicz was dismissed by Stolt in November 1993 but as result of
various Tupe transfers found himself employed by Stolt again in 1999. He was
dismissed for redundancy in September 2000. Miklaszewicz claimed the real
reason for his latest dismissal was that in 1993 he had made a "protected
disclosure" within the meaning of the Public Interest Disclosure Act 1998,
specifically, passing certain information to the Inland Revenue.
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
However, because his disclosure pre-dated the Act the tribunal decided it
could not hear the claim, since to do so would give the Act retrospective
effect even though the dismissal took place once the Act was in force.
It was agreed that Miklaszewicz’s disclosure was "protected" but on
appeal the EAT decided that the rule against retrospective effect was not
absolute. The question was whether reading the Act with a retrospective effect
was so unfair that Parliament could not have intended it. The crucial issue
here was that the trigger for the claim, namely the dismissal, post-dated the
Act.
