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Benson's Law.

Byline: NICKY BENSON

Q We are looking to introduce a night shift in our company in the near future. I understand there are now restrictions in place on how long employees can work at night. Could you explain what these are?

A The restrictions you refer to are contained in the Working Time Regulations 1998 which became effective in October of that year.

Since then, night workers aged 18 and over may not work at night for more than 8 hours in a 24 hour period. This restriction of 8 hours can be averaged over a period of 17 consecutive weeks unless the work involves special hazards or heavy physical or mental strain in which case 8 hours in any 24 hour period cannot be exceeded. There are special provisions for workers under the age of 18 and if you employ young workers these will need to be complied with.

Night time is defined as the period between 11pm and 6 am and night workers are defined as those who work at least 3 hours of the night time, including any overtime worked.

Certain classes of workers are excluded from the provisions provided compensatory time off is given. These include for example workers carrying out security and surveillance activities and where there is a need for continuity of service or production (possibly where work cannot be interrupted on technical grounds). It would be worth checking to see whether your company's work falls within one of these excluded classes.

Q I have an employee who resigned after seven months employment. She had taken almost her full year's holiday entitlement and so I deducted money from her final salary in respect of the holidays in excess of her accrued entitlement. She has threatened to take me to a tribunal because she says that without her written consent or a clause in her contract which allows me to do this,I cannot make the deduction. Is she right?

A Had the employee been in her second or subsequent years employment, I would have said she is correct. The position may be different because she is in her first year of employment,although I should add that it is not possible to give you a definite answer. In the absence of a clause in the contract of employment or the employee's written consent, an employer may not make a deduction from wages, but this does not apply where the purpose of the deduction is to recoup an overpayment of wages.

The issue of whether wages paid in respect of excess holidays constitutes an overpayment has been considered by the Employment Appeal Tribunal. It concluded that a full year's entitlement accrues at the beginning of the holiday year and so if an employee takes full entitlement at any time during the year, it does not constitute an overpayment of wages at the time in question.However, since the Appeal Tribunal's judgement, the rules in respect of the first year of employment have changed in that during that time,holidays accrue on a month-by- month basis rather than in one go. It is therefore arguable that during the first year payment for holidays in excess of the accrued entitlement does constitute an overpayment,This will need to be tested in the tribunals.

Nicky Benson, Cuff Roberts Solicitors, 100 Old Hall St. ,Liverpool L3 9TD.

Telephone 0151 237 7777 or fax 0151 237 7676; or you cane-mail nicky.benson@cuffroberts.co.uk
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Title Annotation:Business
Publication:Daily Post (Liverpool, England)
Date:Nov 19, 2003
Words:575
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