The Government recently announced its support in second readings of a number of Private Members’ Bills proposing reforms originally slated for the elusive Employment Bill. Most provide for the detail of the changes to be made by regulation and are therefore light on detail, but they do increase the likelihood of proposals actually coming into force in the next year or two. The Bills now confirmed to have Government support include:
- Carer’s Leave Bill: a ‘day one’ right for those with certain caring responsibilities to unpaid leave of one week per year, which can be taken in half or individual days and will not require evidence of entitlement. The expectation is that regulations would be laid and commenced in 2024. See the press release here.
- Employment Relations (Flexible Working) Bill: improvements to the right to request flexible working to allow two requests (rather than one) per 12 months, require employers to consult before refusing a request and to make decisions within two rather than three months, and remove the requirement that the employee must explain in the statutory request what effect the change would have on the employer and how that might be dealt with. The Bill does not include an amendment to make this a ‘day one’ right on the understanding that this would be done by secondary legislation; the Government supports the Bill but has not yet clearly committed to remove the current 26 week service requirement.
- Protection from Redundancy (Pregnancy and Family Leave) Bill: before making an employee on maternity, adoption or shared parental leave redundant, an employer must offer them a suitable alternative vacancy, if available, with the employer or an associated employer. The Bill will extend this redundancy protection to cover periods during or after pregnancy (including after early miscarriage) or after maternity, adoption or shared parental leave; regulations will specify the period of protection but the Government press release here suggests the period will be up to 18 months after the birth.
- Worker Protection (Amendment of Equality Act 2010) Bill: the introduction of employer liability for harassment of employees by third parties, and a new proactive duty to take all reasonable steps to prevent sexual harassment in the workplace (with a potential 25% uplift to tribunal awards for breach). The Bill envisages it will come into force one year after it receives Royal Assent.
The Government previously announced its support for Private Members’ Bills on :
- Neonatal Care (Leave and Pay) Bill: a ‘day one’ right to a minimum of one week’s leave for employed parents of a child requiring neonatal care, and statutory pay for those with 26 weeks’ service, expected to come into force 18 months after the Bill receives Royal Assent.
- Employment (Allocation of Tips) Bill.
Some of the other Private Members’ Bills currently awaiting a second reading also replicate earlier Government employment law reform proposals (and may therefore also receive Government support at second reading), for example Bills introducing limitations on the use of non-disclosure agreements, and a right to request more predictable and stable employment terms. Other Private Members Bills still at an early stage include proposed rights relating to fertility treatment and miscarriage leave as well as minor changes to paternity leave. HR practitioners may need to plan for a substantial update to staff handbook policies in the not too distant future….
The Autumn Statement included confirmation of increases to the national minimum wage rates from April 2023. The rate will be £10.42 an hour (up from £9.50) for workers aged 23 or over, £10.18 an hour for those aged 21-22 and £7.49 an hour for 18 to 20-year-olds; the apprentice rate will be £5.28 an hour.
Like other allowances and limits, the employer NICs threshold will be frozen until April 2028.
The HSF Tax Group has produced a full briefing on the Autumn Statement, here.
From 6 April 2021, the cap on the unfair dismissal compensatory award increases from £88,519 to £89,493 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) increases from £538 to £544. This gives a maximum unfair dismissal award of £105,813. Note that since 29 July 2013 there has been an additional cap on the compensatory award of 12 months’ pay.
The bands for injury to feelings awards have also been increased for claims presented on or after 6 April 2021; the lowest band starts at £900, the middle band at £9,100, and the highest band starts at £27,400 with a cap of £45,600 (save in exceptional cases).
From 4 April 2021 the weekly rate of statutory sick pay increases to £96.35 per week (from £95.85) and the weekly flat rate of statutory maternity, paternity, adoption and shared parental pay increases to £151.97 per week (from £151.20).
The national minimum wage rates increases from 1 April 2021. Workers of 23 years and older will be entitled to be paid a minimum national living wage of £8.91 per hour (increased from £8.72). The hourly rate for those aged 21 to 22 increases to £8.36 (from £8.20).
The Supreme Court has ruled that care workers on sleep-in shifts are only entitled to the national minimum wage (NMW) for the time spent performing work tasks or awake for that purpose, and not for time spent asleep. (Royal Mencap Society v Tomlinson-Blake, Shannon v Rampersad)
In the absence of a clear definition of work for these purposes, the Court referred to the Low Pay Commission’s reports (which the NMW regulations were intended to implement) as an aid to construction. These recommended that on call sleep-in shifts should be remunerated but with an allowance and not the full NMW. The Supreme Court therefore disagreed with earlier caselaw suggesting that, depending on the facts, sleeping-in could be viewed as work itself and eligible for the NMW, including when asleep. Sleep-in shifts are to be treated as availability for work only. The regulations provide that availability for work at or near the workplace is work for NMW purposes except where the worker is at home or, for sleep-in workers, it is spent not actually working nor awake for that purpose.
The ruling has lead to calls for legislative change, not least as the LPC’s recommendation for an allowance for time spent sleeping is not a legal requirement. The case also flags interesting questions (which were mentioned but left unanswered by the Court) in light of the increased prevalence of home-working due to the pandemic, particularly for those doing hourly-paid jobs previously at the employer’s premises, where the demand for tasks to be performed is intermittent. Will such a worker now fall foul of the home exception to availability for work counting for NMW purposes? Or can ‘home’ be construed as a place other than the usual workplace so that, given the exceptional nature of relocation due to the pandemic, the home exception is to be treated as not applicable and the time spent during normal working hours waiting for work to come in is still actual work for NMW purposes? Does the position change if the hours are during the night and the fact that it is currently being carried out at home means that the worker is now able to sleep in a way not possible when working on the employer’s premises? Is the key factor whether there is now an agreed expectation that the worker can sleep or pursue their own activities for a substantial chunk of time? Lord Kitchin did make the point that making a cup of tea or even having a nap between tasks is not necessarily inconsistent with actually working. Whilst home-working remains a temporary response to the pandemic, it is perhaps unlikely that employers will seek to change pay practices to pay only for hours when tasks are performed; however, this could change if home-working becomes more permanent and the boundaries of this judgment may then need to be explored further.
(Note that this case does not impact on what counts as working time for Working Time Regulations purposes.)
The Government intends to make the following changes to statutory rates and tribunal compensation from April 2020:
- From 6 April 2020 the cap on the unfair dismissal compensatory award will increase from £86,444 to £88,519 and the cap on weekly pay (used to calculate the unfair dismissal basic award and statutory redundancy pay) will increase from £525 to £538. This will give a maximum unfair dismissal award of £104,659 (subject to the additional cap on the compensatory award of 12 months’ pay).
- The weekly rate of statutory sick pay will increase from £94.25 to £95.85 and the weekly flat rate of statutory maternity, paternity, adoption and shared parental pay will increase from £148.68 to £151.20.
- The national minimum wage rates will increase from 1 April 2020. Workers of 25 years and older will be entitled to be paid a minimum national living wage of £8.72 per hour (increased from £8.21), the rate for workers aged 21-24 will be £8.20 per hour and the rate for those aged 18-20 will be £6.45 per hour.
Unpaid internships are often seen as a way of providing valuable industry experience to students. However, there has been an increasing global focus on whether such arrangements also enable the exploitation of individuals to perform unpaid work. In Hong Kong, while there are exemptions from the application of certain employment related laws which apply to categories of student interns, organisations that wish to host unpaid interns must carefully consider key legislation to ensure compliance. Continue reading
An important announcement in the Budget for employers to note was the decision to delay by a further year the introduction of employer Class 1A NICs on termination payments over £30,000, until April 2020.
There will also be changes to the availability of employment allowance in respect of NIC liability from April 2020 and to the apprenticeship levy from April 2019.
The new national minimum wage rates applicable from April 2019 have also been confirmed, with the rate for those aged 25 or over set at £8.21 an hour. (The Real Living Wage has also increased, to £9 an hour outside London and £10.55 an hour in London.)
Our tax team’s briefing on the Autumn Budget is available here. Our blog post on the proposed changes to off-payroll working rules from April 2020 is here.
HMRC has issued an update confirming that, with effect from 2 July 2018, where there has been a TUPE transfer of employees, all national minimum wage liabilities, including the full penalty amount, will now be enforced against the transferee employer, including penalties triggered by pre-transfer arrears. This highlights the importance of transferees obtaining an indemnity from the transferor to cover these liabilities where possible.
The Court of Appeal has ruled that on-call employees who have to remain available for work at a particular location but are expected to sleep will only be eligible for the national minimum wage in respect of hours when they are actually awake and carrying out work. This can be contrasted with employees who are actually working throughout their shift (such as a night watchman with periodic patrolling duties), who will be entitled to the national minimum wage for the whole shift albeit that they may be permitted to sleep in the intervals between tasks. Leave to appeal to the Supreme Court has been sought. (Royal Mencap Society v Tomlinson-Blake)