UK: News Update, Winter 2000 - Employment Law

Last Updated: 22 March 2000


The introduction in October last year of the Working Time Directive into the UK gave employees, among other things, the right to work no more than a 48-hour average maximum working week (subject to numerous exceptions). In the case of a dispute, how do the new rules work in practice?

This point was recently raised in the mining industry involving some miners employed by RJB Mining (please see endnote 18). In the 17 weeks following the law coming into force in the UK, the employees worked over 48 hours a week and continued to be required to work at weekends in order to keep the mines open. The employees took legal action. The High Court decided that the new law amounted to a mandatory requirement that had to apply to all contracts of employment and forbade the imposition of longer hours.

Points to Watch: This case effectively makes the 48-hour week required an implied term in an employment contract. However there are numerous employees to whom the working time rules may not apply including in particular those who agree to opt out.

Contact name: Emma Hammond


To what extent does a failure, either intentionally or accidentally, to provide the employee with his salary package in full entitle that employee to treat the contract as over, for instance, justifying him in ignoring post-employment restrictions imposed upon him?

As part of their package (please see endnote 19) a group of City brokers were entitled to a tax-free loan - this was not fully honoured by the employer and it was established that the employer in fact had never had any genuine intention of honouring this obligation. In law the key question was whether this failure allowed the employees to treat the employer's conduct as a 'repudiation' of the employment contract even though, as in this case, the amount at stake was a small part of the overall package.

The Court decided that the amount was not relevant - what was important here was whether the failure was intentional (as it was considered to be in this case) or merely an unintended oversight. Only in the former case could the employee consider the contract repudiated by the employer and himself disregard those elements that he regarded as unfavourable.

Points to Watch: The converse of the case is possibly good news for an employer where, for instance, the employee is on 'garden leave' and a minor unintentional salary underpayment takes place. A mistake such as this would not therefore justify the employee in ignoring, for instance, restrictive covenants against working for competitors or disclosing or using confidential information.

Contact name: Martin Price


With no legal definition of sexual harassment, it is often difficult for an employer to appreciate what constitutes harassment. It may be easy to establish in the case of an instance of obviously unacceptable behaviour, but how should he respond to a series of minor incidents?

An employee complained of numerous unwelcome and offensive incidents both on the part of her manager and by her colleagues but only complained once about the manager's conduct (please see endnote 20). The Employment Tribunal considered that whilst no single occurrence constituted sexual harassment, the series of incidents together did amount to harassment. As the employer was aware of the employee's deteriorating health and her complaint to other members of staff and did not investigate, the employer was held to be in breach of the employment contract by failing to deal with these issues.

Points to Watch: The Tribunal stressed that the legal test of whether harassment occurred is in the mind of the victim. Whilst it might be difficult to prove the state of mind the criterion is whether any reasonable person would understand why a woman would take offence, and if the offence continues it will amount to harassment.

Contact name: Joy Lounds


Family Related Employment Rights: Maternity Leave: The Employment Rights Act 1996, part VIII is replaced in its entirety by the Employment Relations Bill 1998. However, the Bill only contains the framework of the new provisions, the remainder will be contained in regulations.

Basic maternity leave, currently the minimum 14 weeks entitlement, becomes ordinary maternity leave and is increased to 18 weeks. This aligns the duration of ordinary maternity leave with statutory maternity pay.

The right to extended maternity leave of 28 weeks currently based on 2 years service will now be called additional maternity leave and will accrue after 1 year's service with the employer.

Regulations will also introduce a simplified notification procedure, which may require the employer to give guidance to the employee on her rights.

The Department of Trade & Industry think that the new maternity leave provisions will come into force on 15 December 1999. Difficulties will arise if the provisions come into force during an employee's maternity leave. A regulation on this transitional period has not yet been made.

Parental Leave: Schedule 3, Chapter II to the Employment Relations Bill implements the Parental Leave Directive. Parental leave will be available on the birth or adoption of a child and will be a minimum of 3 months per child. An employee claiming that his employer has unreasonably postponed a request for parental leave or prevented, or attempted to prevent the employee from taking such leave, may complain to an Employment Tribunal. It is intended that the Directive will be implemented by 15 December 1999.

Time off for Domestic Incidents: This is the new statutory right (inserted as Section 57A of the Employment Rights Act 1996) to reasonable time off for "family emergencies". The basic right, which requires no service qualification, is to take a reasonable amount of time off during normal working hours in order to deal with a domestic incident. This is defined as an incident that occurs in the home of the employee or affects a member of the employee's family, or a person who relies on the employee for assistance.

Contact name: David Smedley

Walker Morris Client Newsletters can serve only to alert the reader to recent developments and to act as a preliminary, but no comprehensive guide. They should not therefore be relied upon in place of specific advice.


  1. Barber and Others v RJB Mining UK Ltd: Times 8 March 1999
  2. Cantor Fitzgerald International v Gallagher and others: Times 25 January 1999
  3. Reed and Bull Information Systems Ltd v Stedman: EAT February 1999 (unreported)

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