“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

EMPLOYMENT TRIBUNAL FEE REFUNDS

Employment Tribunal Fee Refunds.  

The Government announced on 20th October that the first people eligible for employment tribunal fee refunds will be able to apply from today.

Following a judgement of the Supreme Court in July 2017 which outlawed fees on the basis that the Government had not struck the right balance in terms of levels of fees, Government Ministers committed to refunding those who had paid employment tribunal fees since 2013.  Initially around 1,000 are to be contacted individually and given the opportunity to complete applications for a fee refund as from 20th October, and in the coming weeks the full scheme will be opened to all who have incurred fees.

Refunds will include interest of 0.5% calculated from the date of original payment, up until the refund date.  Government sources estimate that the cost of refunding tribunal fees will be in the region of around £33m.

The legal team at Scottish Engineering are in the process of contacting any members affected by the issue of fees, and intend to register potential claims for refund of fees once in receipt of member companies’ instructions.

HOLIDAY PAY UPDATE

HOLIDAY PAY UPDATE

Pay for voluntary overtime worked on a regular basis can amount to “normal remuneration” for the purposes of calculating holiday pay, holds the EAT in Dudley Metropolitan Borough Council -v- Willetts.

The employees worked for the Council as electricians. plumbers, roofers, etc. who worked contracted hours in their day jobs but also worked overtime on an entirely voluntary basis, which resulted in additional payments.

The Council argued that the overtime payments lacked the necessary link to the performance of tasks required under the employment contract and, therefore, were not “normal remuneration”.  This was rejected by the EAT, which found there was a clear link between the payments and the performance of their duties, because during the overtime hours worked the employees were undertaking essentially similar tasks as they did when working their contracted hours.  The EAT also indicated that to exclude such payments from holiday pay would result in a financial disadvantage to workers which would or may deter the taking of annual leave, which is contrary to EU legislation.

Whether or not pay received in respect of voluntary overtime amounts to normal pay will depend upon the regularity of that overtime and overtime pay, which is likely to fall to be determined on a case-by-case basis.

This decision of the Employment Appeals Tribunal represents binding law and members are advised that they may need to take steps to review existing holiday pay arrangements.  Please contact the legal team for further advice.

 

SUPREME COURT RULES EMPLOYMENT TRIBUNAL FEES UNLAWFUL

Supreme Court rules employment tribunal fees unlawful.

After a 4-year legal battle brought by UNISON, the Supreme Court has ruled that Employment Tribunal fees are unlawful.

Since July 2013, employees have required to pay fees of up to £1,200 if they wanted to bring a claim against their employer, unless they qualified for remission.  This subsequently led to a 79% reduction in the number of claims being brought in the Employment Tribunal.

In a 41-page judgement, the UK’s highest court has rules that fees are illegal because they effectively prevent access to justice.  Moreover, they were also found to be indirectly discriminatory against women.

The Government has announced that it will cease taking fees for Tribunals immediately and will refund in excess of £30m to employees who were forced to pay fees in order to bring their claims.  It is likely that this judgement will also lead to a dramatic rise in the number of Employment Tribunal claims being brought in the future, given that this financial barrier will be removed.

Scottish Engineering offers an Employment Tribunal Management Service to our member companies.  Subscription to this service provides cover in respect of all administration preparation and representation relating to Tribunal claims.

ETMS Summary & Form

Further details can be obtained by contacting the office on 0141 221 3181.