Unless the employment contract allows an employer
to reduce an employee’s pay during short-time working,
or the employee agrees to the reduction, the employer
must continue to pay full wages during a period of short-
time working (Millerv Hamworthy Engineering Ltd
(1986)). However, if an employee refuses to perform
his contractual duties because he is taking industrial
action his employer can, understandably, lawfully with-
hold wages for the relevant period (Milesv Wakefield
Metropolitan District Council(1987)).
Where a worker returns to work after a strike but
refuses to work normally, the employer is not bound to
accept part performance and can terminate the contract.
However, if he does not but decides to accept the part
performance, he can withhold wages for the hours lost
(see British Telecommunicationsv Ticehurst(1992)).Cashless pay.As a general rule, wages can now be paid
by cheque or credit transfer. However, employees who
have been continuously employed since before the
beginning of 1987 and who have always been paid in
cash may have a contractual right to continue to be paid
in that way. If an employer wishes to start paying such
employees by cheque or by credit transfer, he should
either obtain their consent or take the necessary steps to
vary the contract.National minimum wage (NMW)
The National Minimum Wage Act 1998 (NMWA 1998)
was brought into force by regulations over the period
of 1998/9. The Act and connected regulations provide
workers with a floor below which their wages will not
fall, regardless of the size of the employer’s business.
Those who work part time have benefited most. Section
references are to the 1998 Act.1 Entitlement. Those entitled must be ‘workers’ who
work or ordinarily work in the UK under a contract of
employment and are over compulsory school leaving
age (ss 1(2) and 54(3)). Casual workers are included as
are agency workers (s 34) and home-workers (s 35).
The self-employed are excluded, as are voluntary work-
ers. These include charity workers who either are totally
unpaid or receive only reasonable travel and out-of-
pocket expenses. Regulations also exempt from the pro-
visions those working and living as part of a family, e.g.
au pairs. Those under 16 years of age are also excluded.2 Owner-managed businesses. The 1998 Act applies to
directors of owner-managed businesses. Thus, a personPart 4Business resources
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8 Dismissal and detriment.Dismissal where the regula-
tions have been infringed is automatically unfair so that
there is no service requirement for a claim. Fixed-term
workers are also protected against a detriment for trying
to enforce the regulations.
9 Remedies.A tribunal may order compensation or
recommend that reasonable action be taken to remove
or reduce the effect of an employer’s practice where less
favourable treatment is found.
Rights and duties of the parties
to the contractThe duties of an employer and an employee come from
common law and Acts of Parliament. They will be dealt
with under the headings which follow.
Before proceeding to them it could be said that one of
the major duties of an employer is to comply with the
Working Time Regulations. In this text, however, the
regulations are considered as part of health and safety
law and appear later in this chapter.
Duties of an employer
To provide remuneration
In business organisations the duty of the employer to
pay his employees and the rate or amount of pay are
decided as follows:
1 by the contract of employment; or
2 by the terms of what is called a collective agreement
made between a trade union and the employer. The
terms of this agreement, including the part on pay,
are then assumed to be part of the individual con-
tracts of employment of the members. The employer
must comply with the national minimum wage pro-
visions (see below).
The pay which the worker is to get should nearly
always be definite because it is included in the written
particulars which we have just dealt with and also because
the ERA requires itemised pay statements.
If there is no provision for payment in the contract –
which is highly unlikely – then if the worker sued for
payment, the court would fix a fair rate of pay for the job
by taking evidence as to what rates of pay were usual in
the type of work being done.