Page 28 - BOSS Today Issue 10

HR WHEN CUTS

ARE FAIR

Recent case history suggests you can have a case for dismissing staff who won’t
accept pay cuts. But you need to be more careful when it comes to working time

urrent times are a massive 18 per cent. The provided always that you as manager was required to remain
proving so hard Employment Appeals Tribunal an employer have genuinely on work premises but was
Cthat more and more (EAT) ruled that although it exhausted the negotiated permitted to sleep. According
employers are having to may be perfectly reasonable approach first. to the EAT, such periods did
consider salary cuts. You do for employees to resist such a not count for NMW but could
need to have the stomach for change, that in no way makes “Working time” means count as working time for the
such a move, given the prospect it necessarily unreasonable for different things purposes of the WTR.
of employment tribunal claims the employer to persist with a Both the National Minimum To make sure you are on
for unfair dismissal and breach course of action. Wage Regulations 1999 the right side of the law, for
of contract that may ensue. (NMW) and the Working Time calculating NMW you need to
But dismissal for refusal to 2. In Garside & Laycock v Regulations 1998 (WTR) call for look at whether the worker
accept a change of contract Booth, the EAT ruled that the calculations of “working time” is required to be at work
terms is potentially fair – it can employer does not have to be to be made. As a result, there premises and be awake. But for
count as “some other substantial “in dire straits” before it can be is a temptation among many calculating WTR working time,
reason” for dismissal - and will reasonable to impose a pay cut. employers to assume that the time spent on standby at work
actually be fair if the employer It added that the reasonableness words mean the same thing. premises can count even when
acts reasonably in deciding to of the employee’s stance is not But there is a crucial difference no actual work is required.
dismiss. relevant to the reasonableness when it comes to periods when It can be a confusing idea
In order to establish that you of the employer’s decision a worker is on stand-by. to get one’s head around, but
as an employer have shown – although the employer Two recent cases spell this the obvious starting point is to
such fairness, you will have to would be expected to take out. First there was Baxter v decide whether it is a WTR or
have made genuine efforts to into account the employees’ Titan where, in the context of a NMW question that must be
negotiate the changes before circumstances. the NMW, periods a chauffeur decided. If you’re not sure, seek
you had to resort to giving This approach properly spent away from home between legal advice.
notice of dismissal and offering reflects the fundamental assignments where he was able
re-engagement on new terms. principle of unfair dismissal - to sleep over at a hotel were n FOR FURTHER
that in deciding what is “fair” deemed not to be “working INFORMATION PLEASE
Two recent cases have reiterated it is the reasonableness of the time”. CONTACT YOUR REGIONAL
this general principle: employer that is under scrutiny. But then there was Wray v HR ADVISER ON
1. In Slade & Others v TNT, The fairness or otherwise of JW Lees & Co (Brewers) Ltd, 0845 450 1565
the pay cut in question was the employees is irrelevant - where a temporary pub

28 BOSS TODAY | November/December 2011

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