Implied duty to pay wages during lay off or short-time working
Employees who are laid off or placed on short-time working should receive their normal pay (Miller v Hamworthy Engineering [1986] IRLR 461) unless there is a clear contractual term to the contrary. The contract term can be express, or alternatively implied based on conduct, custom or practice, but if a term is to be implied, the custom or practice must be notorious, certain and reasonable:
A collective agreement said that short-time working could be introduced, but only where “approved as an alternative to redundancy” by the union. When it was introduced without union approval, employees had the right to bring a claim for unlawful deduction of wages under Part II of the ERA 96 to claim their full pay.
Davies v Hotpoint [1994] IRLR 538
Reps need to take care when negotiating the terms of any consent to short-time working, to make sure the limits of any agreement, and its impact on possible claims for guarantee pay, are clear before taking it to the workforce for approval. See, for example, Abercrombie v Aga Rangemaster Limited [2012] UKEAT/0099/12/8M.