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Where a worker has more than one employer, in calculating the weekly rest period, is the employer required to aggregate the worker’s working hours for both (or all) employers?
Q&As
For information on who has the right to protection under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833, see Practice Note: Eligibility for Working Time rights. The areas of the WTR 1998 which impact on working hours are: • the 48-hour maximum working week • opting out of the 48-hour maximum working week • daily rest periods • weekly rest periods • rest breaks • special case exemptions and working through breaks For further information, see Practice Note: Hours of work and working time. Under WTR 1998, SI 1998/1833,
Where a worker has taken more than their accrued holiday entitlement on the date they leave employment, is an employer permitted to recover the excess holiday pay from the worker in the absence of a contractual provision allowing them to do so?
Q&As
Where a worker's employment is terminated during the course of a leave year and, at the date of termination, he or she has taken proportionately more leave in that leave year than they are entitled to under the Working Time Regulations 1998 (WTR 1998), SI 1998/1833, the employer cannot recover the excess holiday pay unless a ‘relevant agreement’, in
Where a worker wishes to bring a claim for historic underpayment of wages, can the worker claim the underpayment as a series of unlawful deductions (subject to the two-year cap introduced by the Deductions from Wages (Limitation) Regulations 2014), and if so, would the link between one underpayment and the next in the series of underpayments be broken if there was more than a three-month gap between the underpayments and the claim did not relate to holiday pay? In a claim for underpayment of wages, would the link be broken if the series of underpayments was interrupted by a month where the worker’s wages were correctly calculated?
Q&As
Subject to certain excepted deductions, an employer cannot make any deductions from the wages of a worker unless: • the deduction is required or authorised to be made by virtue of: ◦ a statutory provision, eg the requirement to make deductions for income tax or National Insurance contributions via Pay As You Earn (PAYE), or ◦ a relevant provision of the worker's contract, eg where the employer provides a loan to the worker
Where a worker’s pay is not in compliance with National Minimum Wage (NMW) rates, can the worker bring a claim in the employment tribunal and also make a complaint to HMRC for enforcement proceedings against their employer? If the worker’s claim involves a cause of action in addition to their claim for statutory underpayment of wages, would they be able to pursue the claim for underpayment separately via HMRC enforcement, and proceed just with their employment tribunal claim in respect of the other, non-NMW-related, claim(s)?
Q&As
If a worker has not been paid the national minimum wage: • the worker can enforce their entitlement by way of their contract by making a claim for breach of contract or a claim for unlawful deduction from wages • HM Revenue and Customs (HMRC) can enforce the worker's entitlement by issuing a notice of underpayment or suing on the worker's behalf For further information, see Practice Note: National minimum wage, in particular the main sections dealing with Consequences of failure to pay and Enforcement by the Fair Work Agency. As the guidance in
Where a written periodic tenancy states that one month's notice must be given to terminate the tenancy, can the notice expire at any time or must it expire at the end of the monthly period?
Q&As
A periodic tenancy is a tenancy which does not have a fixed term but rather rolls over from period to period (for example annually). A periodic tenancy will arise following the expiration of a fixed term assured shorthold tenancy (AST) if the landlord and the tenant do not agree to enter into another fixed term tenancy, and is referred to as a statutory periodic tenancy as it arises by operation of section 5(2) of the Housing Act 1988 (HA 1988). Parties are also at liberty to agree a contractual periodic tenancy from the outset. If the periodic tenancy in question is a statutory periodic tenancy, HA 1988, s 5 provides that the periods of the tenancy are the same as those for which rent was last payable
Where a ‘new lease’ is not registered at the Land Registry and was subsequently assigned, and the reversion also transferred, what is the status of the lease between the current landlord and tenant and would the current landlord be able to pursue the tenant for unpaid rent?
Q&As
The grant of a tenancy for a term of more than seven years from the date of grant is required to be registered at the Land Registry. If the requirement of registration is not complied with, the transfer, grant or creation becomes void as regards the transfer, grant or creation of a legal estate; instead, the grant or creation has effect as a contract made for valuable consideration to grant or create the legal estate concerned. Accordingly, the unregistered lease will be an ‘equitable’ tenancy and will remain so until formally registered. Generally, the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995) applies to tenancies which are granted after 1 January 1996. Under LT(C)A 1995, s 3(1): ‘The benefit and burden of all landlord and tenant covenants of a tenancy— (a)
Where a ‘qualifying annual payment’ is made by a UK company to UK corporate trustees of a discretionary trust, can the UK company payer rely on the exemption from UK withholding tax in section 933 of the Income Tax Act 2007? Is that payment made ‘by or through’ the trustees for the purposes of withholding tax?
Q&As
The withholding tax exemption in section 933 of the Income Tax Act 2007 (ITA 2007) applies only where the person ‘beneficially entitled to the income in respect of which the payment is made’ is a UK tax resident company. Consequently, the UK tax-resident corporate recipient must be the ‘beneficial owner’ of the payment. A UK
Where a ‘right to manage’ company has taken over the management of a block of flats, is the original management company still responsible for entering into a deed of covenant and providing a certificate on transfer under a restriction on title to the individual lease titles, or does the right to manage company now have responsibility?
Q&As
The answer to this Q&A in any particular case will depend upon the structure and ownership of the reversion, the original management company, and the provisions of the lease. Under Chapter 1, Part 2 of the Commonhold and Leasehold Reform Act 2002 (CLRA 2002), qualifying leaseholders of flats have the collective right to take control of their block, on a 'no-fault' basis. This is effected through the creation of ‘Right to Manage (RTM) Company’ by the leaseholders. For further information, see Practice Note: The right to manage. The RTM Company operates by the statutory transfer of the management functions (ie including the management obligations) of the landlord, and/or any management company, to the RTM Company (CLRA 2002, ss 96(2), 97(2)). Similarly, the tenant's
Where a ‘temp-to-perm’ transfer fee has been paid by an employer to the employment business or temping agency, is it lawful for the employment contract between the employer and the former agency worker to stipulate that the worker must repay the transfer fee to the employer if they leave within a certain time frame?
Q&As
Fees to work-seekers Under section 6 of the Employment Agencies Act 1973 (EAA 1973), it is an offence for a person carrying on an employment agency (eg a recruitment agency) or employment business (sometimes known as a temporary work agency, or temping agency) to request or receive a fee from a work-seeker for providing work-finding services. For further information, see the section of Practice Note: Employment agencies and employment businesses entitled ‘Requirements before services provided’. The exceptions to this general prohibition are set out in the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (Conduct Regulations 2003), SI 2003/3319, Sch 3. See the section of Practice Note: Employment agencies and
Where accommodation is provided under sections 192(2) and (3) of the Housing Act 1996 (HA 1996), is a notice pursuant to section 3 of the Protection from Eviction Act 1977 or a court order required to secure possession?
Q&As
This question raises the issue of a local housing authority’s duty under Part VII of Housing Act 1996 (HA 1996), in relation to homelessness. HA 1996, s 188 relates to the authority’s duty to secure interim accommodation where there appears to be a priority need. This duty ends once the decision is notified. In the context of a duty to persons not in priority need who are not homeless intentionally, HA 1996, s 192(2)–(3) provide: ‘(2) The authority shall provide the applicant with (or secure that he is provided with) advice and assistance in any attempts he may make to secure that accommodation becomes available for his occupation. '(3) The authority may secure that accommodation is available for
Where administrators are appointed to a company and the notice of appointment includes confirmation that they can act jointly and severally (as required by paragraph 100 of Schedule B1 to the Insolvency Act 1986 (IA 1986)), does the power to act jointly and severally automatically carry over into creditors voluntary liquidation (CVL) if the administration is converted to CVL pursuant to IA 1986, para 83 of Sch B1 and the same office-holders are appointed?
Q&As
A company can move from administration to creditors voluntary liquidation (CVL) if the administrator thinks there are sufficient funds to allow for a payment to unsecured creditors of the company and all secured creditors have been paid. For further information, see Practice Note: How an administration comes to an end. In order to effect this, the administrator must follow the procedure set out in paragraph 83 of Schedule B1 to the Insolvency Act 1986 (IA 1986) and send a notice of moving from administration to CVL (using
Where agreement cannot be reached over changes to employees’ terms and conditions of employment through the collective bargaining process, can the employer approach employees directly with its offer, and implement its proposed changes unilaterally? What are the consequences of varying employees’ terms and conditions of employment outside the agreed collective bargaining arrangements?
Q&As
This Q&A assumes that for the purposes of this response that the employees in question are trade union members. Under section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), it is unlawful for an employer to make an offer to a worker who is a member of an independent trade union which is recognised, or seeking to be recognised, by that employer if: • acceptance of the offer, together with other workers’ acceptance of offers which the employer also makes to them, would have the prohibited result (ie, that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union), and • the employer’s sole or main