Peter Etherington Law Employment Services

Employment Update for Small Businesses
August 2018

Dear Subscriber

Failure to pay the National Minimum Wage is a very serious offence with some tough penalties for employers who get it wrong.  So it is very unhelpful for employers in the care sector that there has been so much confusion in recent times over what constitutes working time in the calculation of the minimum wage.  Particularly for carers who sleep in overnight to be on hand in case a service user needs some assistance. Read on for the latest on this matter – but beware, it may still change!

Also, a timely reminder to all employers about carrying out checks to ensure that prospective employees have the right to work here – clearly something that will change again once Brexit is finally implemented, but it is important that employers adhere to the current rules.

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
Should you pay workers for sleep-in shifts?
Confusion over National Minimum Wage (NMW) rules
Employers in the care sector will be very familiar with the long-running question of whether or not workers should be paid for each hour they are on site when working a sleep-in shift.  On the one hand, they have to be present in order to meet the employer’s requirements, but on the other hand they are asleep for much of the shift – so can they really be considered to be working?

This is the question that the courts have wrestled with for a number of years now, and which seemed to have been resolved last year by the Employment Appeal Tribunal (EAT) which I reported in my newsletter at the time.  They determined that in most cases workers will be considered to be working and that, therefore, all the time they are on shift should be taken into account when calculating whether or not they were paid the NMW.

Fast forward to July 2018 and the same case has come before the Court of Appeal, along with a number of similar cases (Mencap v Tomlinson-Blake).  The Court has now overturned the earlier decisions and determined that time when an employee is free to sleep and is provided with sleeping facilities, is not normally to be counted as working time for NMW calculations.  This does depend on the facts to some extent, so we would always advise you to check with us if you have any staff who take on sleep-in shifts.

It is quite possible that this case may be appealed further, to the Supreme Court, so we will let you know if that is the case and update you in due course

Do you know how to check new employees have the right to work in the UK?
New rules to assist Windrush generation workers
You should always carry out checks on any potential new employee, before they start working for you, to ensure they have the right to work in the UK.  You should check everyone, not just those you suspect may be immigrants, as that could amount to race discrimination.  Generally speaking, EU nationals have the right to work in the UK, but there are also a whole range of other people from outside the EU who have rights to work – some of them time-limited.

The Home Office has recently updated its guidance to make special provision for people from the Windrush generation, who may be unable to present appropriate documentation.  You are now able to contact the Home Office directly in those circumstances.

The guidance contains the list of acceptable documents that demonstrate someone’s right to work.  Please note that a driving licence is not an acceptable document.  Most applicants will be able to present an EU passport, and you should take a copy of the details page to keep on file as evidence that you carried out the check.  You should write on the copy that you carried out the check on the relevant date, or otherwise keep a clear record of the check.

Please contact us if you need any help with right to work checks.

National Minimum and Living Wage Rate​s
The current National Living Wage and National Minimum Wage rates are:

  • £7.83 per hour for workers aged 25 and over
  • £7.38 per hour for workers aged 21 to 24
  • £5.90 per hour for workers aged 18 to 20
  • £4.20 per hour for workers aged 16 and 17
  • £3.70 per hour for apprentices under 19 and those over 19 in their first year*

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