Employment law

[Explorer-8]

I know of a railway company that have been employing people, to sell refreshments, on a minimum wage, for more than a year.

Now they have started exactly the same business on another line, but these workers will be paid about �7-50 an hour even though they do exactly the same job and get better break facilities.

Is there a case against the company using one of the discrimination laws? Is there any way that they are breaking the law?

The same company forced one of its workers to work a late shift (until 2100) followed by an early shift (starting at 0500 hours) followed by the late shift again and then followed by the early shift the next day.

Are the company breaking the law under one of the working time laws?

[malky53]

long reply - part 1

A worker is entitled to equal pay for work of equal value

The difficulty is that although you say it is the same employer and in any common sense sense it may well be be but if the first worker works from bloggs ltd and the second for new blogges (2007) limited then there may be no claim

As regards shifts it is messier

Prior to 1 August 2003 the Working Time Regulations which implement the Working Time Directive in the UK did not apply to Rail Transport


Everyone has a right to a period of 24 hours in a 7 day period or failing that a period of 48 hours without work in a 14 day period

A worker is entitled to at least 11 hours rest between days of work

Everyone has the right if they work for more than 6 hours to a 20 minute break

Both the break and the 24 hour or 48 period cannot count if they cannot leave the site and do not count if they are on call or on standby during them

If any time is worked between 11 pm and 6 am the worker may be treated as a night worker and special rules apply

So the 5 am start may triggers this

The employer and workers can redefine night butit must be at leaset 7 hours and must include midnight to 5 am

A night work is someone who works at least three hours of night time

Night workers should not work more than 8 hours daily and cannot opt out of this (see 48 hours)

A person can only be contracted to work 48 in a week on average unless they agree otherwise (these last 4 words are UK only and apply the the 48 hour limit only)

It too is averaged ( over 17 weeks I believe but there are plans to move to 52)

... continued next post

[malky53]

long reply part 2

Agreeing to an annual hours contract would be agreeing that in some weeks you might work over 48 hours

In general, employers and workers can agree that the night work limits, rights to rest periods and rest breaks may be varied, with the workers receiving "compensatory rest" (see below). They may also agree to extend the reference period for the working time limits up to 52 weeks.

The night work limits (including the limit for special hazards), rights to rest periods and rest breaks do not apply where:the job requires round-the-clock staffing as in hospitals, residential institutions, prisons, media production companies, public utilities, and in the case of workers concerned with the carriage of passengers on regular urban transport services or in industries where work cannot be interrupted on technical grounds.

I cannot see this applies to the catering arm as a train could run without a buffet whereas it could not run without a driver.

Where the worker works in rail transport and his activities are intermittent; he spends his time working on board trains; or his activities are linked to transport timetables and to ensuring the continuity and regularity of traffic the rules on rest breaks may not apply ( I think this effects the 20 minutes but not the 11 hours)

The reference period then becomes 26 weeks and there is a right to compensatory rest

[malky53]

long reply part 3 and last

"Compensatory rest" is normally a period of rest the same length as the period of rest, or part of a period of rest, that a worker has missed.

The regulations give all workers a right to 90 hours of rest in a week. This is the total of your entitlement to daily and weekly rest periods. The exceptions allow you to take rest in a different pattern to that set out in the regulations.

The principle is that everyone gets his or her entitlement of 90 hours rest a week on average, although some rest may come slightly later than normal

The European Court of Justice has ruled that compensatory rest should be provided immediately after the end of the working period

I think that means if you get less than 11 hours one night you have to have 11 hours plus what you missed the next night

For more info try

http://www.dti.gov.uk/employment/employment-le gislation/employment-guidance/page28978.html

or www.acas.org.uk

sorry this was long and horribly boring - hope it helps

[Explorer-8]

Thank you Malky.

The new arm of the company (up to Glasgow) has exactly the same name as the existing arms (up to Newcastle, etc), but the workers in the new section have been given a different name (such as Senior on-board staff instead of just on-board staff) even though there is no difference in the type of trains, or in the actual work done.

Does the fact that the majority of the existing staff are of foreign extraction, but the majority of the new staff are of British extraction, make any difference?

What about the fact that the company itself has the same name in both cases?

[buildersmate]

As far as I can establish, some of the Train Operating Companies (examples, GNER, Midland Mainline,
First Great Western, and Virgin) operate their own restaurant and buffet facilities, others use specialised catering companies. Examples of these are Momentum Services Ltd, Rail Gourmet Ltd and Select Services Partner.

I imagine you are talking about GNER. However they may have recently changed their strategy and contracted the catering on a new franchise (just won) to an outside company. You need to find out if the catering operator is the same in the examples that you quote (by asking an employee who they work for?) Otherwise there is simply no obligation for the pay rates to be similar.

[buildersmate]

The origin of the employees has no bearing on it, neither does the name of the host Train Operating Company - it is who employs the catering staff that is key.

[Explorer-8]

The other problem is that the existing workers are expected to take some of their breaks on the station platforms, such as in the waiting areas, where there are no toilet facilities. They cannot leave their refreshment trolleys to go to the toilet because they have to pay for every item that is stolen from the trolleys, out of their own wages, at retail price.

This becomes more of an issue when there is disruption to the railway services such as cancellations and signal failures.

[Explorer-8]

Thank you, Buildersmate and Malky.

[xron]

Hi, in regard to your latter question, the working time directives only cover work over a period of time, typically 12 weeks. Therefore the situation you detailed would not be breaking the law unless in continues long term.

However there could be a case of discrimination under the test of 'like for like' work where similar work should be paid similar wage. However I'm not entirely sure what you would claim under, Sex discrimination if opposite gender is involved, otherwise there is another way to claim although I can't quite remember what. There is a definate case though.