Where a worker is required to sleep-over within the workplace, but may only be woken if needed to carry out a specific duty, the worker is only entitled to the National Minimum Wage (NMW) for the time they are required to be awake, for the purpose of working, they are not entitled to the NMW for the whole shift.

In the case of Royal Mencap Society v Tomlinson-Blake, Ms Tomlinson-Blake was a carer for two adults in their own home.  As well as working day shifts, she was required to carry out a sleep-over shift between 10pm and 7am for which she received a payment of £29.05.  During the sleep-over shift, she was not required to carry out any duties but was required to remain at the clients’ house and keep an ear out in case she was needed.  Ms Tomlinson-Blake had her own bedroom, together with a shared bathroom.

Ms Tomlinson-Blake claimed that she was entitled to the NMW for the whole sleep-over shift.  The Employment Tribunal and Employment Appeal Tribunal (EAT) upheld her claim, ruling that she was working for the whole of the shift.

Mencap appealed to the Court of Appeal who upheld the appeal.  The Employment Tribunal and EAT should have concluded that she was available for work, rather than working, and that the sleep-over exception in the National Minimum Wage Regulations 2015 applied – she slept by arrangement at her place of work and was provided with suitable facilities for doing so.  Therefore, only the hours when she was required to be awake for the purposes of working counted for NMW purposes.

This is an important decision for employers in the care sector who engage workers to carry out sleep-over shifts at work.  The Court of Appeal reviewed and, in effect, overturned a significant number of previous authorities on the treatment of sleep-over shifts for NMW purposes.  Workers who carry out sleep-over shifts at work are only entitled to the NMW Wage for those hours where they are awake and working.

It is important to note, that the judgment only deals with the situation where a worker is expected to sleep all or most of the shift but should be available if required.  It makes it clear that it is not dealing with cases where a worker may be permitted to sleep between tasks.  For example, a night security guard who is responsible for patrolling premises from time to time throughout the night but who is permitted to sleep for short periods between patrols and is given a mattress to sleep on in an office, would be regarded as working throughout his shift and entitled to the NMW for the whole shift.

For further advice and support on what counts as working time and NMW contact us at Solve.

 

Minimum wage will change to £7.20 in April 2016 for all working people aged over 25.

George Osborne announced in his first purely Conservative budget than “Britain deserves a pay rise and Britain is getting a pay rise”.

The Low Pay Commission (LPC) will recommend any future rises to be made to the compulsory National Living Wage(NLW). The Government is aiming for this to have reached £9 per hour by 2020.

The Office for Budget Responsibility (OBR) claims that National Living Wage would have a ‘fractional’ effect on jobs says Osborne. As a result of the National Living Wage, the Office for Budget Responsibility believe there will be 60,000 fewer jobs by 2020, but in total there will be one million more.

The Office for Budget Responsibility estimate this will cost a business 1% of profits. Corporation tax will be cut to 19% in 2017 and 18% in 2020 to offset this cost. For small businesses their national insurance contributions will be cut to allow them to benefit from this also.

George Osborne also announced “From 2016, our new Employment Allowance, will not be increased by 50% to £3,000. This means a firm will be able to employ four people full time on the new national living wage and pay no national insurance at all.”

As it stands the national minimum wage is sitting at £6.50 per hour which is to rise to £6.70 in October. In April 2016 anyone aged 25 an over will see a rise of 11% on their current mandatory pay rate, resulting in an hourly rate of £7.20.

The Government also published a new remit for the Low Pay Commission.

To allow a sustainable level of National Living Wage and taking into account wider economic conditions, National Living Wage will be set to reflect the growth in median earnings by the Low Pay Commission.

The Low Pay Commissions remit which related to the National Minimum Wage, will not only concern those aged under 25 and will remain unchanged.

The Low Pay Commission will also set out how it will reach 60% of median earnings by 2020. This is based on forecasts by the Office for Budget Responsibility.

Often employers have to manage employees travelling long distances to places that are not their normal place of work, including overseas. Questions will appear over what an organisation’s commitment should be with regards to working time, transport, health and safety and paying for travelling time. If the correct policies and procedures are not in place, this could cause problems and disputes, which may prove quite costly for employers – both in time and money!

Travelling to work from home and back again is generally speaking not classed as working time, under the Working Time Regulations 1998. This is any period during which workers:

  • Are carrying out their duties, and working at their employer’s disposal
  • Are receiving ‘relevant training’

It is also known to be additional periods which would be agreed between an employer and employee to be working time in a relevant agreement, for e.g. contract of employment. As stated above travelling to work from home and back again is not classed as working time, however if you travel from home on work business, or travelling during working hours for business purposes this will usually count as working time. Any travel taken out with working hours will also be counted as working time, if it is work related.

It is therefore important that employers make and retain the correct record of employee’s working time to prevent regulations being breached. It should also be monitored for members of staff who travel frequently and who may not have opted out of the 48 hour working week.

The next question is whether travel time should be paid…

Hourly paid staff should be given time off in lieu for any business travel outside their normal working hours. Their entitlement may be found in their contract of employment, and if not this should be agreed between the employer and employee. This pay should not fall below the National Minimum Wage, which has some different rules on what is ‘working time’ according to the most recent government guidance on calculating the minimum wage (Click here for more information on calculating the minimum wage).

For salaried staff the payment for travel out with working hours is less common but it still depends on what their contract of employment states. They may be entitled to time of in lieu or overtime. This is also something which can be agreed between the employer and employee if this is not covered in the employee’s contract of employment.

Any travel expenses should be directed by clear policies and procedures, and in order to prevent any disputes over entitlement all employee’s should be made aware of these. There are a variety of different options that can meet the needs of the employer, for example; the employer may wish to set rules that the employee must use the most economical means of transport available, travel by standard class, have caps on meals, and drinks and overnight accommodation reimbursement. This does also have to be weighed up against the best interests and welfare of the employees travelling, especially if long distances and working soon after arrival is expected. Policies should remind employees about anti bribery laws and employer rules on gifts and hospitality, more so if travel abroad is required.

If an employee travels regularly, the employer should also carry out relevant risk assessments. Frequent travel can have a negative effect on an employee’s health, which could in turn lead to sickness absence and reduced productivity. Ensure rest breaks are given to those employees who drive regularly and eyesight should be tested regularly also.

If employee’s make use of their own vehicles for work, there should be procedures in place to ensure the vehicle is; appropriately insured, regularly checked and the employer should be updated of any fines and endorsements the employee may have. Using mobile phones while driving, drink driving, drug driving etc. should also be covered in Policies.

Policies and Procedures should be reviewed regularly to ensure they are up to date and reflect practice. If you have any Policies and Procedures which are a little dated and need reviewed. Solve can help.

The government has accepted the recommendations made by the Independent Low Pay Commission (LPC) in their annual report and has approved of an increase in the National Minimum Wage from 1st October 2014.

The National Minimum Wage rates as recommended by the LPC will be:

• a 19p increase in the adult rate from £6.31 to £6.50 per hour

• a 10p increase in the rate for 18 to 20 year olds from £5.03 to £5.13 per hour

• a 7p increase rate for 16 to 17 year olds

• a 5p increase for apprentices from £2.68 to £2.73 per hour.

Consequently, the payments that must be considered when calculating the minimum wage for an employee include:

• Income tax and National Insurance contributions

• Wage advances or loans

• Repayment of wage advances or loans

• Accommodation provided for the employee above the offset rate

• Penalty charges for a worker’s misconduct

Employers should also note that the new minimum wage rates apply to pay reference periods beginning on or after 1st October 2014. An employee must be paid the minimum wage on average for the time he has worked in the pay reference period.

Contact Solve for more information and advice.