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Employment Update for Small Businesses
April 2021

Dear Subscriber

We would like to wish you a very happy Easter.

This month we have some guidance on employing non UK nationals in a post-Brexit era and an update on the legal position regarding pay for care staff who cover sleeping-in shifts.

Please contact me if you would like to find out a bit more about any of the subjects raised in this update or if you need any help or advice.

Please forward this email to any of your contacts who might find it of benefit.

Peter Etherington
Tel: 01664 668164


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Peter Etherington
Right to Work in the UK
What must employers do?
Whilst we have now left the EU, there has been no change in the checks that employers are required to carry out. It is still lawful to recruit EU workers using the same checks as before (e.g. if they have an EU passport, that is good enough). You should follow the steps set out in the Government guidance to complete the correct checks. However, that is all set to change on 1st July 2021, when EU workers will no longer be entitled to work in the UK on the basis of having an EU passport. They will need to have a specific right to work here or you will need to become a sponsor under the new rules and ensure they meet the threshold required under the new points based system.

If you have checked an EU citizen’s right to work in the UK using the correct method prior to 1st July 2021, you will not need to do any retrospective checks on them. It is up to the employee to ensure they have taken appropriate steps to retain their right to reside (and work) in the UK under the EU Settlement Scheme before 30th June 2021.

Paid to Sleep?
Sleep shifts no longer covered by the National Minimum Wage
The Supreme Court has ruled recently in Royal Mencap Society v Tomlinson-Blake that the time an employee spends asleep or permitted to sleep on a night shift does not normally count as working time when it comes to calculating their entitlement to the National Minimum Wage (NMW). This overturns an earlier ruling that indicated such time should count and has caused difficulties for care service providers, who have struggled to meet this requirement due to the limited funding available to them for sleeping night shifts through local authorities, etc.

Most care providers pay a flat fee of around £35 for a sleeping night shift to staff, which is clearly well below the minimum wage as an average hourly rate for the whole period. The ruling states that time spent actually working on a shift – for instance, if they are woken up to assist with a service user – should count as working time.

Employers need to remember also that the NMW rate does not need to be paid with respect to every hour worked. They have to pay it on average over the relevant pay period. So if someone is paid weekly, they need to check that the total pay for that week divided by the total number of hours worked comes to at least the NMW level. If they are paid a flat rate for a sleeping night shift of £35 plus, say, £9.50 per hour for day shifts, then it is likely this will be more than enough to meet the NMW requirements even if they are up and working for a few hours on their sleeping night.

National Minimum and Living Wage
From 1st April 2021, the National Living Wage applies to workers aged 23 and over. Previously it was for workers aged 25 and over. Also the rates for the National Living Wage and National Minimum Wage rates have increased as follows:

  • to £8.91 per hour (from £8.72) for workers aged 23 and over (+ 2.2%)
  • to £8.36 per hour (from £8.20) for workers aged 21 to 22 (+ 2%)
  • to £6.56 per hour (from £6.45) for workers aged 18 to 20 (+ 1.7%)
  • to £4.62 per hour (from £4.55) for workers aged 16 and 17 (+ 1.5%)
  • to £4.30 per hour (from £4.15) for apprentices under 19 and those over 19 in their first year* (+ 3.6%)

*N.B. Apprentices over 19 and who have completed at least one year are entitled to the appropriate rate for their age.