The care sector has experienced many challenges over the past few years. However, none have been more controversial than the recent changes regarding sleep-ins. But what is a sleep-in shift and why has there been so much controversy?
With the law and tribunals yo-yoing on the topic, how are employers able to keep up and remain compliant?
Overview
A ‘sleep-in’ shift is where an employee is allowed to sleep at their place of work; the employee is on call at work but is allowed to sleep if they are not needed for work tasks.
There have been ongoing legal disputes between employers and employees as to how much pay an employee should receive for such a shift (especially considering that the employee is allowed to sleep). These disputes have resulted in tribunal claims.
The law
Within the National Minimum Wage Act (NMW) there is an opt-out for those employees who are sleeping at work. The law and the Low Pay Commissions Agency advised that when employees are asleep, this time is not considered to be ‘timed-work’ and so the employer does not have to pay NMW.
However, this has been brought into question and many employees have argued that being asleep at work is not true rest as they are away from their home. They argue that the NMW exemption does not apply and they should be allowed to get NMW for the time they are at work (asleep or otherwise).
Previous cases to be aware of
The Whittlestone case is cited as one of the key cases for sleep-ins pre-2018. Mrs. Whittlestone took her employer to a tribunal claiming she had been underpaid NMW arguing that she should have been paid NMW while asleep at work.
In this case the Employment Tribunal concluded that it did not matter whether Mrs Whittlestone was asleep or actually performing duties during her sleep-in, ruling that Mrs Whittlestone should have been paid NMW.
To come to this conclusion the Employment Tribunal considered the employee’s obligation to be at work. Specific consideration was given to the fact that Mrs. Whittlestone would have been disciplined should she have left the work premises. Given the constraints on the employee’s freedom, Mrs. Whittlestone was entitled to be paid the NMW for the duration of her shift, even if she was asleep.
Following the changes in the way the law was interpreted, HMRC advised that all care providers should back pay up to 6 years underpayment. This would have cost the industry over £400 million.
However, the principal of this case has since been challenged.
Most recent ruling
The next important case in this area is the Mencap case. Using the principles of the Whittlestone case, Mencap employees, with the help of Unison, took Mencap to a tribunal for underpayment of NMW during sleep-ins. Mencap lost this case and it was found that Mencap had underpaid NMW to its employees. Any employee working a sleep-in for Mencap should have been paid NMW.
This ruling meant that Mencap was liable for huge back payments, potentially bankrupting the business.
Having initially lost at tribunal, Mencap then appealed against the ruling in 2018 at the Court of Appeal. After a landmark hearing, Mencap won.
The judge concluded that while employees are asleep they are only considered to be available for work rather than actively engaged in work. Therefore, the employees are exempt from NMW and Mencap were not liable to make any back payments.
Future changes
In spite of this most recent ruling, this issue is far from resolved. Unison have lodged an appeal at the Supreme Court. This escalation to the Supreme Court is to challenge the Court of Appeal’s decision (who sit below the Supreme Court in the hierarchy). As the case has not yet been accepted we are waiting to see what happens and will keep you updated.
Where does this leave employers?
While Mencap have contested the original tribunal decision they are very vocal regarding protecting carers’ working conditions. They have published a statement on their website explaining that while they are not in a financial position to make large back payments, employees who work a sleep-in will be paid NMW rather than an ‘on call’ rate moving forward.
At present employers in this sector are not legally obliged to pay NMW while an employee is asleep (should the employee be woken and actively engaged in work this is when NMW would be due).
However, given that this is an area that could change it would be wise to pay NMW for sleep-ins, as Mencap are now doing, or budget for back pay should the law change again.
If you need any advice on this or any care related HR or Employment Law issues please call one of our Employment Law Consultants on 0161 603 2156 to arrange a free initial consultation.
Since fees were abolished in 2017, employees are now more likely to file Employment Tribunal claims. It is therefore even more important that employers act in accordance with employment legislation.
Typical disputes that arise in the workplace include:
- Unfair/constructive dismissal
- Discrimination
- Unpaid wages
- Protected disclosure
- Breach of statutory right/contract
Ideally any issues that could potentially lead to an Employment Tribunal should be addressed with the employee in the workplace and an informal discussion can often lead to a resolution. However, if this is not the outcome there are strict rules around what, where and when constitutes a claim.
Timeframe to file a claim at the Employment Tribunal
An employee has 3 months minus 1 day from the date of the incident occurring, e.g. an employee is dismissed on 15th January 2019, they have until 14th April 2019 to file a claim.
ACAS
Before filing a claim, the employee must contact ACAS and start a process called Early Conciliation (a form of mediation). This is free and impartial.
Early conciliation is up to 4 weeks and can be extended by a further 2 weeks if they are almost near settling the matter.
The process of Early Conciliation ‘stops the clock’ on the 3 months minus 1 day timeframe, e.g. an employee is dismissed on 15th January 2019, on 15th February 2019 the employee contacts ACAS to start Early Conciliation. This came to an end after 4 weeks on 15th March 2019. The employee now has until 14th May 2019 to file a claim at the Employment Tribunal.
Submitting a claim to the Tribunal
An employee must complete an ET1 form in order to submit a claim. As stated earlier, since 26th July 2017 these claims have been free.
ACAS are still available even after filing the claim and cases can still be settled up until the Judge makes a final judgement.
How we can help you
Our HR experts can advise employers on all aspects of employment law ensuring that they are compliant and therefore minimise the risks of being taken to an Employment Tribunal.
Our legal team can assist throughout the ACAS Early Conciliation process.
If you are taken to an Employment Tribunal, our legal team will act on your behalf and conduct full litigation during the tribunal claim. Full advice and guidance are provided throughout the process to ensure we get the best possible outcome.
To find out more call 0161 603 2156 or click here to request a free consultation.
It has been just over a year since The General Data Protection Regulation (GDPR) had companies up and down the country in a frenzy. The GDPR came into force on 25th May 2018, replacing its predecessor the Data Protection Act 1998.
With employees reminded of their data protection rights, is it any wonder the Information Commissioner’s Office has reported a 160% increase in data related complaints made by employees against their employers, within the first 5 weeks of GDPR launching?
Yet, do you really know what a subject access request is, and how to approach it?
The Law
GDPR applies to ‘personal data’ and confers the rights of unsuccessful job applicants, employees and ex-employees to request access to any such data, known as a subject access request (SAR). Whilst employees have always had the right to access their personal data through SARs, the enforcing of GDPR in 2018 has served as a reminder. As a result of this, employers must respect the rights of individuals when processing and holding their personal information through good organisation and data handling procedures.
The six key principles of GDPR:
- Personal data should be processed fairly, lawfully and in a transparent manner.
- Data should be obtained for specified and lawful purposes and not further processed in a manner that is incompatible with those purposes.
- The data should be adequate, relevant and not excessive.
- The data should be accurate and where necessary kept up to date.
- Data should not be kept for longer than necessary.
- Data should be kept secure.
Subject Access Requests
SARs can be hard to recognise. They do not need to have the words ‘subject access request’ or refer to ‘GDPR’ for it to constitute a SAR. It merely needs to ask for personal data. It could include information regarding any grievances or disciplinary action, or information obtained through monitoring processes. The confusion continues as each SAR is different to the next as they are unique to the individual.
A vital change from the Data Protection Act 1998 to the GDPR is the removal of the administrative fee charged to an employee submitting an SAR. This, coupled with the tight time constraints, can present multiple challenges to companies.
Originally, companies had 40 days to respond to a SAR, this has now been reduced to just one month from the date of receipt.
Companies are obliged to respond within one month and inform individuals of:
- What personal data you hold about them
- Why you hold it
- Who you disclose it to
- Where the data is available
Given the nature of the request, it is not a simple process therefore arrangements must be in place to deal with any potential SARs.
Consequences
Under GDPR, companies can be fined up to £16.5m or 4% of their turnover if they are found to be breaching GDPR laws. This is thirty times more than the maximum penalty available under the Data Protection Act 1998. Whilst there is no set time period within GDPR outlining how long employers can hold records of data, they must be mindful not to hold it longer than necessary.
If you need any advice on Subject Access Requests or any HR and Employment Law issues please call one of our Employment Law Consultants on 0161 603 2156 to see how we can assist.
At least two million people will be affected by the new minimum wage this April. Below we have listed the new national minimum wage along with other rates of pay that will change in April.
National minimum wage – increase in hourly rate of pay as of 1st April 2019:
- 25 and over
£8.21 - 21 to 24
£7.70 - 18 to 20
£6.15 - Under 18
£4.35 - Apprentice
£3.90
Statutory sick pay increase as of 6th April 2019:
- From £92.05 to £94.25
The lower earnings limit has also risen from £116 to £118
Statutory Maternity, Paternity, Adoption and Shared Parental Pay increase as of 7th April 2019:
- From £145.18 to £148.68
The lower earnings limit has also risen from £116 to £118
Statutory Redundancy Cap Pay increase as of 6th April 2019:
- The gross weekly cap used for calculating redundancy pay has increased from £508 to £525
Therefore the maximum statutory redundancy payment has increased from £15,240 to £15,750
Deduction of wages is a common dispute between an employer and employee or even an ex-employee, and one that can land an employer at an Employment Tribunal if not completed correctly.
Employers risk unlawful deduction of wages claims or claims that the employer has not paid National Minimum Wage (NMW) if they have made a deduction from an employee’s wage in the wrong way.
Other than the normal reasons for deductions (such as tax and NI contributions) what can an employer legally deduct from an employee’s wages?
We’ve identified different types of deductions that an employer can make and looked at how they can make these deductions safely.
Overpayment of wages
An employer has every right to deduct any overpayments from an employee’s wages. In the case of an overpayment, as the employee has already benefited from the money in a previous wage payment the employer has the right to make deductions that takes the employee below NMW.
However, to act reasonably, it is advised that the employer should attempt agree on a payment plan with the employee to pay back what is owed, especially if the deduction would take the employee below NMW.
Court order
If there has been a court order (such as Child Support Agency payments or an Attachment of Earnings order) then an employer has the right to deduct these from an employee’s wages. In this instance, if the employer does not comply with any such deductions then they could find themselves in contempt of court.
However, it is imperative that court orders should not take an employee’s wage below NMW.
Contractual deductions
If there is a contractual clause that allows the employer to deduct money from an employee’s wages they can do so. This could be for not returning company property or other contractual benefits.
If there is no contractual clause that allows such deductions, employers and employees can come to an agreement to make deductions. It is best practice to get any such agreements in writing and ideally prior to the deductions commencing.
On occasions when an employee has missed work due to being on strike or taking industrial action, the employer is able to deduct for such activities.
Training Agreements
A training agreement should be an independent agreement that is separate from the contract of employment. Usually this will take the form of a ‘loan’, where the employer stipulates how much the employee will be liable to pay back should the employee leave within a certain time period of the training course. To be as reasonable as possible it is advised that the repayment amount should be pro-rata the longer the employee remains employed.
It is vital that the employer and employee agree these terms in advance of the employee completing the training. It is very difficult for an employer to make reasonable deductions for training if the terms are not set in advance.
Uniform
In 2018 many well-known retail operations were fined for failing to pay staff the National Minimum Wage. However, this was not because of obvious deductions that the employers had made.
As per statutory law, employers may require workers to wear specific uniforms. If the employer requires the worker to purchase specific items, such as overalls, then this should be accounted for within their wage.
Wagamamma and TGI Friday’s were caught short on this point and subsequently fined for not paying NMW. This is because they expected employees to buy particular parts of their uniform, (i.e. black jeans). It was concluded by HMRC that asking employees to buy any part of their own uniform pushed the employees below NMW in their first pay cheque.
If an employer provides a uniform, without any charge, any deductions the employer makes for ordinary wear and tear to that uniform will reduce the employee’s pay rate, potentially causing the employee to fall below NMW. However, if the worker damages the uniform, loses it or does not return it at the end of the employment, the employer can deduct this from the employee’s wage.
To avoid any confusion between employer and employee on whose responsibility it is to maintain uniforms, employers are urged to have clear uniform policies and procedures. Where necessary, paying a uniform supplement could be beneficial.
Equipment damage/replacement
Another common question we’re asked is if an employee damages company property, can this be deducted from their wages?
The employer cannot deduct the costs from the employees wage without written consent from the employee. There also needs to be a clause in the Contract of Employment which gives the employer the authority to do so.
In the absence of a contractual clause that enables an employer to make deductions from wages, both parties can come to an agreement for the deduction to be made. It is suggested that an employer ensures they receive written authorisation from the employee to make any such deductions from their wages. This will be useful should the employee decide to take it to Tribunal for unlawful deduction from wages.
If a deduction of this nature should happen, you need to ensure that the cost must be a ‘reasonable reflection of the cost of repair’. Meaning, the payment cannot be more than the cost of the damage to the property. Anything more could be seen as a penalty clause and will therefore not be enforceable.
Any deduction has to be reasonable, and employers need to ensure that they deal with each employee to fit their particular circumstances. You also need to ensure that the amount that you deduct does not take the employee below National Minimum Wage.
Transparency is key
Having a clear policy in place about deductions will make any need to implement it easy for both employers and employees. It is also worth considering that if the employee has to go to any financial expense for the business, or under the order of the business, the employer should not allow the employee to fall below NMW.
If you have any concerns with employee deductions or want to change your current systems and processes, contact one of our Employment Law Advisers on 0161 603 2156 for advice or to arrange your free consultation.
Stress is a serious condition that can impact many employees. It is vital that employers recognise and identify stress before it escalates or exacerbates other serious mental or physical health problems.
The Health and Safety Executive estimates that over 15.4 million work days were lost to work related stress, depression or anxiety in 2017/18, costing the economy approximately £6.5 billion each year.
So how do you identify and manage stress in the workplace and how can employers help support employees’ wellbeing?
Consider the demands on the employee
Is the workload reasonable? Employers have a legal responsibility set out by the Health and Safety Executive to assess the risk of work related stress and to take measures to control this. Ensuring that the work level is appropriate and time demands are achievable is one way to reduce the stress of an employee.
Giving employees unrealistic targets may increase their stress and increase the employee’s dissatisfaction at work. This in turn can lead to underperformance costing businesses potential profit.
Be aware that this will be different for each employee so one size fits all is not the case here.
Training and support
Ensuring that employees are fully trained to do their role is important. Employees who are uncertain of what they are doing or lack the capability to do the role will feel an increased level of stress. Reviewing employee training and holding regular reviews will help them feel more supported.
This is a particularly important factor when it comes to staff retention in roles where the skills needed are in high demand in the labour market.
Training Managers
Ensuring that all managers have a consistent approach to managing stress within the workplace is key as an inconsistent approach will encourage divisions within the company and ultimately may lead to staff resignations.
Training managers in consistency and to listen and talk to their employees could reduce the likelihood of employees going off sick or even long term sickness absence.
Improving team relationships
Having a good support network helps reduce stress levels, so creating this environment within teams is essential. If employees have others to discuss, or even share workloads, bounce ideas off and indeed have peers to turn to if they are struggling will produce a more efficient and less stressed workforce.
A team does not always have to be peers who are working in the same job. They can be people in the same office, on the same desk or employees who carry out similar functions.
Having strong teams can also help improve knowledge sharing and reduce any key person dependencies that a business may have.
Consider an Employee Assistance Programme (EAP)
EAPs are becoming very popular within the working environment and are intended to help employees deal with personal problems that could negatively impact their performance at work.
Many also offer support to people living within the employee’s household, acknowledging that the mental wellbeing of family can also impact on the employee’s mental wellbeing.
Flexible working
Flexible working contributes to employees feeling trusted, appreciated and, managed well, will reduce their stress levels both in and outside of the workplace.
Working flexibly empowers employees and helps them juggle the pressures and demands in their personal life and balance that with the pressures of work. Giving staff more autonomy over their working day can increase productivity for the time the employee is in work.
Being flexible can also actively reduce stress levels by enabling employees to avoid stressful situations such as rush hour traffic, and subsequently difficult commutes and simplifying childcare arrangements.
Conclusion
While many employees enjoy and are motivated by challenges, ensuring that these are achievable and reasonable will help ambitious employees achieve more. When setting targets, assess each employee and the workplace ensuring you get the right balance between motivating staff members and not overloading the employee with workload they will not be able to manage.
Having a proactive policy in place to deal with stress will avoid employees going into ‘burnout’ and impacting negatively on the performance of the business.
If you’d like to find out more about how to implement an employee assistance programme and the associated costs or for further advice on managing employee stress contact one of our Employment Law Advisers on 0161 603 2156 to arrange your free initial consultation.