The Government first announced plans for a shared ownership right to buy in October 2019. At the time the sector raised concerns about the impact the plans would have on housing associations ability to borrow. An election and a pandemic later the Government announced, during the CIH Housing Festival last week, the return of the right to shared ownership as part of its Affordable Homes Programme (AHP).
In Grange v Abellio London Ltd, the EAT has held that a claim for ‘refusal’ to permit rest breaks under the Working Time Regulations 1998 can be brought where the employer fails to make provision for such breaks, even if the worker does not expressly request them. The EAT has taken the view that whilst workers cannot be forced to take rest breaks they must be positively enabled to do so.
Mr Grange works for AL Ltd as a ‘Relief Roadside Controller’ (RRC), which involves regulating and monitoring bus services. His working day initially lasted eight and a half hours, which was meant to include a half-hour lunch break. That break was often difficult to fit in given the busy work schedule. In July 2012, AL Ltd decided to reduce the RRCs’ working day to eight hours so that they would work without a break and finish half an hour earlier.
In July 2014, Mr Grange submitted a grievance complaining that for two and a half years, he had been forced to work without a break. When his grievance was rejected, he complained to an employment tribunal that AL Ltd had refused to permit him to exercise his right to a 20-minute rest break (which applies where the working day is longer than six hours).
The tribunal rejected Mr Grange’s claim on the basis that there had been no ‘refusal’ to permit the exercise of that right. Other case law suggested a ‘refusal’ had to be a distinct act in response to a worker’s attempt to exercise the right. Mr Grange had made no request to take daily rest breaks following the change in hours. The EAT rejected this approach and made clear an employer has an obligation to afford the worker the entitlement to take a rest break; that entitlement will be ‘refused’ if it puts into place working arrangements that fail to allow the taking of such breaks.
So what does this mean for your existing arrangements?
Providers will need to ensure that employees have a realistic option of taking their relevant unpaid breaks or be satisfied they fall within one of the exceptions to the provision of such breaks. The exceptions are narrowly drawn and may well not be interpreted in favour of employers. We consider the most practical solution is to enter into a workforce agreement (or collective agreement if you recognise unions) to agree how rest break provisions need to be modified taking into account your services. The agreement will need to cover how you will ensure workers receive compensatory rest. Case law has found that compensatory rest should be provided as soon as possible following the missed break. As a result, arrangements for compensatory rest will need to be carefully negotiated. A workforce agreement is binding where it:
- is in writing;
- has been circulated in draft to all workers to whom it applies together with guidance to assist their understanding of its terms.
- been signed before it comes into effect by all the relevant representatives (or, if there are 20 or fewer workers employed by the employer, either by all the relevant representatives or a majority of the workforce); and
- have effect for no more than five years.
Will Brexit help?
We don’t believe Brexit will help. It had been expected that the Working Time Regulations would be one area of law that the Government would look to refine when no longer constrained by EU rules. However, Theresa May has been clear that existing workers’ rights will not be eroded whilst she is Prime Minister and therefore the Working Time Regulations are not expected to change anytime soon.
If you would like any further information on the operation of the Working Time Regulations contact Matthew Wort or your usual contact in our employment team.
Two final pieces of the possession jigsaw have been published on 15 September 2020. Mr Justice Knowles’ working group on possession proceedings has issued its guidance on the “overall arrangements” for possession proceedings.
One change proposed by the Building Safety Bill is the introduction of a duty holder regime, which will see statutory responsibility for the safety of higher risk buildings placed on key individuals
Throughout this pandemic, the Competition and Markets Authority (CMA) has been publishing various “Statements on Coronavirus” (Statements) which provide guidance on consumer rights during this time.
A recent increase in COVID-19 cases in the UK means new measures are being put in place in an effort to reduce the risk of a second wave. Whilst the impact of COVID-19 continues to be felt, it is important to remain focused on the sector’s road to recovery.
Sometimes half an hour at a conference gives you the reality that has been staring you in the face all along. That was my experience watching “Change is on the Horizon”
Following our recent e-briefing on Possession Notices, Helen Tucker and Emilie Pownall from our housing litigation team discuss the impact of the changes on social landlords.
Not only has the possession stay been extended until 20 September, the notice periods to be given to tenants has been extended in certain circumstances with some important exceptions.
The Court has confirmed that a party cannot withhold its consent in order to re-write the original bargain.
Following the Grenfell Tower tragedy, building safety continues to be a key concern for social housing providers and their residents.
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