NATIONAL LIVING WAGE & NATIONAL MINIMUM WAGE

The Chancellor, Philip Hammond, announced increases to the National Living Wage and National Minimum Wage in the budget, as from April 2019.

Year                   25 + Over         21-24          18-20         Under 18       Apprentice
April 2018:          £7.83             £7.38           £5.90          £4.20              £3.70
April 2019:          £8.21             £7.70           £6.15           £4.35              £3.90

Note: Apprentices

Apprentices are entitled to the apprentice rate if they are either:

a) Aged under 19

b) Aged 19 or over and in the first year of their apprenticeship

They are entitled to the minimum wage for their age if they are both:

a) Aged 19 or over, and

b) Have completed the first year of their apprenticeship

MORRISONS DATA PROTECTION CASE

The data protection breach claim against Morrisons Supermarkets has now been considered by the Court of Appeal.

Morrisons have been found vicariously liable for the breach (upholding the original court’s judgement) which means that over 5,000 employees may be able to claim compensation for the breach and any losses suffered against Morrisons.

An ex-employee – A. Skelton – then a senior internal auditor, had leaked data, including names, addressed and bank details online and to the press.  He was jailed for 8 years in 2015.

Morrisons had argued before the Court of Appeal, that they should not be liable for criminal misuse of its data, but were unsuccessful.

Morrisons have indicated an intention to appeal to the Supreme Court.

This case may be of concern to employers, as Morrisons were not found to have done anything wrong.  The only criticism of Morrisons’ procedure was that they did not ensure that data legitimately uploaded from their system on to a USB by Mr Skelton, to be sent to external auditors, was safely returned to Morrisons encrypted systems.

SUPREME COURT RULING

The case of Lee v Ashers Baking Company centred around the bakery’s refusal to supply a cake iced with the message ‘Support Gay Marriage’, which had been ordered by Mr Lee.  The bakery’s Christian owners refused to bake the cake due to their religious beliefs.  Mr Lee brought a claim against the bakery on grounds of both sexual orientation and political beliefs.  His case succeeded at first instance and before the Northern Irish Court of Appeal.  However, the Supreme Court overruled those decisions.

The Supreme Court held that the reason for the treatment received by Mr Lee was due to the message he wanted on the cake, not because of his sexual orientation: that was irrelevant to their decision.  It was thus not direct discrimination in the ordinary sense.  The Supreme Court was also not satisfied that this was associative direct discrimination, i.e. because Mr Lee was likely to associate with the gay community.  For associative discrimination to succeed there needed to be an association with particular persons and discrimination due to that association, and that was absent in this case.

In considering the discrimination claim based on political opinion (which is a protected characteristic in Northern Ireland) the Court had regard to the need to read the legislation in a manner compatible with the right to freedom of religion and freedom of expression under Articles 9 and 10 of the European Convention on Human Rights.  The Court felt that the legislation should not be read in such a way as to compel a service provider to express a message with which they disagree, unless justification is shown for doing so.

“SLEEP-IN” PAYMENTS AND THE NATIONAL MINIMUM WAGE – WHAT ARE THE IMPLICATIONS FOR THE SOCIAL CARE SECTOR?

The Court of Appeal (COA) has overturned the Employment Appeal Tribunal’s (EAT) decision in the case of Royal Mencap v Tomlinson-Blake, by ruling that sleep-in shifts do not attract the National Minimum Wage (NMW).  This case involved a care worker who was contractually obliged to spend the night at, or near, her workplace and was expected to sleep for most of the shift, but could be woken to carry out work, if assistance was required.  The worker received a fixed sum for the sleepover shift, but would receive additional payment if she was called upon during the night.  Ms Tomlinson-Blake argued that she should receive the NMW for the entire shift and, therefore, claimed that she had been underpaid by her employer, as the payment she received was less than this.

The Employment Tribunal and the EAT followed previous case law on the topic, and found that Ms Tomlinson-Blake had been underpaid, as she should have received the NMW for the entire shift.  However, the COA found that only time spent awake and working should be included in the calculation of NMW payments and that previous decisions holding that sleep-ins should attract the NMW were wrongly decided.  Essentially, the COA found that if the essence of the contractual arrangement is that the worker is expected to sleep and facilities for that purpose are provided, the NMW will not be payable.  However, in cases where sleeping is incidental and there are no proper sleeping arrangements, for example night time security, the NMW may still be payable.

A number of social care providers have already altered their contractual provisions on sleep-ins and now pay the NMW for the entire shift in order to comply with the previous case law in this area, with local authorities supplementing the additional income stream required to make these payments to staff.  Therefore, any attempt to stop these payments without agreement/consultation could give rise to unlawful deductions and constructive dismissal claims.  Moreover, permission has been sought to appeal the decision to the Supreme Court and, therefore, it is possible that the COA decision could be overturned.  Nevertheless, employers should consider making their staff aware of the decision and the changes that may need to be made going forward, depending on the outcome of the appeal and any local authority spending reviews.

For providers that have not incorporated the NMW into sleep-in shifts, consideration should be given to making financial provision for this in the event the decision is overturned at the Supreme Court and back pay claims become a reality.  However, if the decision is upheld, no change will be required and, therefore, a status quo position should be adopted at present for those companies that have not made any changes.

Furthermore, HMRC has announced that it is considering how the decision impacts the social care compliance scheme that companies in the sector were encouraged to sign up to in 2017, in order to avoid being fined or “named and shamed” for failing to pay staff the NMW.  HMRC guidance is expected to be issued on this topic in the next few weeks.

Any members of Scottish Engineering who are concerned about the implications of the decision should get in touch.

EU NATIONAL RESIDENCY RIGHTS IN THE UK AFTER BREXIT

The UK will leave the European Union (EU) on 29 March 2019.  This has left many EU citizens residing in the UK in a state of limbo with regard to whether they will be permitted to remain after Brexit.  The Home Secretary has announced that an online scheme will be launched in autumn 2018, which will require all EU Nationals who live in the UK to submit applications to the Home Office if they wish to stay in the UK.

EU citizens and family members who have been in the UK for 5 years by the end of 2020 will be able to apply for “settled status”, which means they will be able to reside and work in the UK indefinitely.  Those who arrive in the UK by 31 December 2020 but have not acquired 5 years’ residency at that time, will be able to apply for permission to stay in the UK until they have been resident for 5 years and apply for settlement when they reach this point.

Applicants will be asked to provide biographical information, declare whether they have any criminal records and upload a photograph.  This information will be cross-referenced with the existing data that the various government agencies hold on them to verify their identity.

Applications will cost £65.00 for adults and £32.50 for children but will be free to those EU citizens who already have indefinite Leave to Remain in the UK.  Nationals of Switzerland, Iceland, Lichtenstein and Norway will also be covered under this scheme.

EU Nationals that have naturalised as British citizens will not be required to take any action.

ADVERSE WEATHER / PAY ADVICE

Member companies should consider the following advice in deciding whether or not to pay employees who were absent during the adverse weather over the period 28 February – 2 March 2018.

Policy: Firstly, if the company has a policy in relation to adverse weather and pay, then the company should follow that policy.  Also, consider any custom and practice – how has the company dealt with these issues in the past?

Legal Position: If you do not have a policy the legal position is that, to retain an entitlement to pay, employees must be ready, willing and able to work.  However, employers must also act reasonably in deciding whether to pay employees or not, and employees have legal protection against unlawful deductions from wages.

Companies need to look at any instructions they issued to employees.  If the company issued an instruction that they were closed after a certain point in time or closed on a particular day, then that amounts to an instruction to employees not to come to work or to go home and employees are entitled to pay for the full day.  There would be no evidence in that situation that employees were not ready, willing and able to work.  Similar principles apply if employees were told only to travel to work if it was safe to do so and advise that it is not safe for them to do so – if, for example, there was a red weather warning in place.  Again, in that situation the employee would require to be paid.

Another factor to be considered is emergency time off for dependants for any employees who have children, who were unable to attend school or nursery due to the weather.  Those employees have a statutory right to time off albeit it is unpaid time off.  However, there should still be a discussion with the employee – they may say that irrespective of childcare issues, they would have been unable to travel anyway.

If employees have opted in the absence of an instruction to remain off work, then on the face of it they are not entitled to be paid, as they were not ready, willing and able to attend work.  However, as indicated above, employers should act reasonably and discuss what the options are with employees.

These options would include taking annual leave, unpaid authorised absence, including emergency time off for dependants, if applicable, or making the time up which could happen either at work or at home (if practicable) over a reasonable period.  Employers should be clear that it is not going to be regarded as a disciplinary matter and will not be counted as poor attendance for disciplinary or any other purpose.  If employees work up the time during time normally paid at overtime, they should work up the time at the overtime rates, not basic rates.

Future: If you do not have a policy, you may wish to consider introducing a policy to avoid confusion in future over adverse weather events.  If so, please contact us and a sample policy can be supplied.

If you have any other questions, then please contact your usual adviser at Scottish Engineering.

INCREASES TO STATUTORY MATERNITY/PATERNITY/ADOPTION/SHARED PARENTAL LEAVE PAYMENTS AND SICK PAY

The annual increase in respect of the above payments is due to come into effect:

a) From 1 April 2018 statutory maternity/paternity/adoption and shared parental pay will be increased from £140.98 to £145.18.  Maternity allowance increases to the same rate on 9 April 2018.

b) From 6 April 2018 the weekly rate of statutory sick pay will increase from £89.35 to £92.05.

These figures have been increased in line with the consumer prices index.

ANNUAL INCREASES TO TRIBUNAL AWARDS

The Employment Rights (Increase in Limits) Order 2018 will come into force from 6th April 2018 and details the normal annual increases to maximum and minimum Tribunal awards.

The main increases are as follows:

  1. Maximum week’s pay (for calculating redundancy payments and the unfair dismissal basic award) increased from £489 to £508
  2. Maximum compensatory award for unfair dismissal increased from £80,541 to £83,682

 

INCREASE TO THE HOURLY RATES OF NATIONAL MINIMUM WAGE

Increases to the hourly rates of national minimum wage will apply from 1st April 2018 as follows:

  • The national living wage (for workers aged 25 and over) is £7.83
  • The standard adult rate (workers aged between 21 and 24) is £7.38
  • The development rate (workers aged between 18 and 20) is £5.90
  • The young workers rate (workers aged under 18 but above compulsory school leaving age who are not apprentices) is £4.20
  • The apprentice rate is £3.70

From 1st April 2018 the accommodation offset will be £7.00 each day.

Supervisor Training Courses 2018

Dates have now been agreed for our 2018 Supervisor Training Courses.

The booking form can be viewed at: http://scottishengineering.org.uk/wp-content/uploads/2017/12/Supervisor-Training-Courses-2018.pdf

 

For more information, please contact Eileen Pirie. eileenpirie@scottishengineering.org.uk

 

Tel: 0141 221 3181