The Employment Appeal Tribunal, in quite a short judgment, has decided an important point which has vexed practitioners since the Working Time Regulations were introduced in 1998.
Under the WTR, an employee has a right to work a maximum 48-hour week (averaged over a relatively lengthy period of time). He can opt-out of the right if he wishes, but cannot be subjected to a detriment if he refuses to opt out.
Employers and solicitors have been concerned that employees can insist on the same salary being paid for a 48-hour week, that they were previously paid for working 60- or 70- hours a week - since to reduce salary because the employee has exercised his right not to work more than 48-hours might be regarded as a detriment.
The EAT (Burton P. presiding) has taken the common sense approach that a reduction in salary, if an employee withdraws his opt-out from the 48 hour maximum week, is NOT a detriment - but just a "consequence" of the employee's actions. Whilst not a direct point for decision in the case, presumably any reduction in salary would have to be on a pro rata basis.
The core of the decision is in paragraphs 4 and 14.
This decision avoids the device adopted by some employers, which was to argue that the contract of employment was frustrated (because, when the employment started and the salary was negotiated, the parties did not contemplate a 48-hour maximum working week) and new employment has been offered on new terms.
Clamp v Aerial Systems