Clamp v Aerial Systems, EAT, 6 October 2004

Reduction in pay for reduced hours is not a detriment

Mr Clamp worked a 60-hour week, having opted out of the maximum 48-hour working week under the Working Time Regulations 1998. His 60 hours included travelling to and from home.

In 2003, Clamp no longer wished to opt out, and an agreement was reached whereby he would work a 48-hour week that excluded time spent travelling to and from home. There was no pro-rata reduction in salary for the reduction in hours.

Clamp complained to the employment tribunal that he suffered two detriments as a result of withdrawing his consent to the opt-out. First, his 48 hours were calculated excluding, rather than including, travelling to and from home. Second, he was (rarely) required to wait on call on a motorway slip road, whereas previously he had been able to wait on call at home. The tribunal found that Clamp had suffered no detriment, so Clamp appealed.

The Employment Appeal Tribunal upheld the tribunal’s decision. It concluded that it would not be a detriment, but a “consequence” if salary were to be reduced (presumably, although not a point in the case, on a pro-rata basis) following a reduction in hours resulting from an employee withdrawing their consent to opt out.

Therefore, Clamp suffered no detriment where the hours now worked were the maximum permitted under the regulations instead of the number of hours previously worked, but for the same salary.



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