National Living Wage

The Government has announced an update regarding the National Living Wage and National Minimum Wage, set to come into effect from April 2024.

At present, workers aged 23 and over receive the highest rate of pay of National Minimum Wage, this is changing.

The changes in rates will be as follows:

• National Living Wage (note this is for 21 years and over and not as previously from 23 years ): from £10.42 to £11.44 per hour
• National Minimum Wage (18-20): from £7.49 to £8.60 per hour
• Young workers rate (16-17): from £5.28 to £6.40 per hour
• Apprentice rate aged 19 or under 19, or over 19 in the first year of apprenticeship): from £5.28 to £6.40 per hour

Flexible Working

An amendment is due to come into effect from April 2024 under the Flexible Working Act 2023.

Employees will be able to make a flexible working request from the first day of their employment, as opposed to currently ?having to wait 26 weeks.

The employer will have a two-month timeframe (instead of three) to make a decision on the request, which can be extended through mutual agreement, and requires the employer to provide a reason for any rejection.

Two applications, (previously one) can be made within any 12-month period.

Paternity Leave Changes Introduced

The Paternity Leave (Amendment) Regulations 2024 will bring about changes that will take effect on 6 April 2024.

These changes are as follows:

• Employed fathers and partners will have the option to take their statutory paternity leave in two separate blocks of one week of leave.
• Employed fathers and partners will have more flexibility to take their statutory leave at any time within the first year (within 52 weeks of birth or placement for adoption), rather than being restricted to just the first eight weeks.

Amendment to the Workers Protection (Amendment of Equality Act 2010)

The Workers Protection Act, along with the amendments to the Equality Act 2010 and associated secondary legislation is expected to come into force.

This will bring forth an obligation for employers to proactively prevent sexual harassment of their employees by taking appropriate measures.

Employers ought to ensure that they are taking ‘reasonable steps’ to prevent harassment; should they not, tribunals will have the power to increase sexual harassment compensation by up to 25% where an employer is found to have breached this new duty.

Further changes to look out for this year:

• Neonatal Care (Leave and Pay)

• Worker’s right in requesting a more predictable contract/pattern

• Legal protection from redundancy for pregnant workers

For further advice on any Employment Law related matters, whether that be as an Employer or Employee, please contact our expert team.

Article written by Employment Solicitor Kerry Hudson & Paralegal Ann George.

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• Suspension – is it a neutral act?

• Voluntary overtime and holiday pay

• Monitoring workers’ emails

Suspension – is it a neutral act?

 The High Court in Agoreyo v London Borough of Lambeth was asked to consider whether the employer’s act of suspending an employee was a breach of contract. The case concerned a teacher who had used a degree of force to secure behavioural compliance of two children. She was immediately suspended without the chance to respond and no alternatives to suspension were considered.

The School stated that the suspension was pending an investigation and that it was a neutral act.

The Court held that suspension was not a neutral act, particularly in the case of a vocational job, such as a teacher. It was found that it was a knee jerk reaction and amounted to a breach of trust and confidence.

Employers should therefore carefully consider whether it is appropriate in each instance to immediately suspend an employee when allegations arise.  Employer should avoid implementing suspension as the default position, without considering alternatives.

Voluntary overtime and holiday pay

 In Dudley Metropolitan Borough Council v Willetts, the Employment Appeal Tribunal (EAT) found that voluntary overtime payments had to be taken into account when calculating holiday payments.

The workers had set contractual weekly hours and in addition, they could perform overtime if they so wished; however, their employer, Dudley MBC could not require them to work this overtime.

The EAT found that holiday pay must correspond to “normal remuneration” so as not to discourage workers from taking leave. For a payment to count as “normal”, it must have been paid over a sufficient period of time, on a regular or recurring basis which was the case for most of these workers.

It is important to note that this case does not establish that all voluntary overtime must be included in the calculation of holiday pay; where overtime is rare or occasional, it is unlikely to form part of normal remuneration.  It should also be noted that the requirement to calculate holiday pay on the basis of normal remuneration only relates to four weeks holiday in a holiday year (which is less than the statutory minimum of 5.6 weeks per holiday year).

Monitoring workers’ emails

In the 2016 case of Barbulescu v Romania, the Chamber of the European Court of Human Rights (ECHR) decided that a Romanian employer had acted lawfully when it monitored an employee’s Yahoo messenger account.

However, an appeal to the Grand Chamber of the ECHR has overturned this decision. The crux of the decision is that employees have a right to respect for privacy in the workplace and if an employer wants to monitor their emails, this must be made clear to the employees but it stopped short of saying that they had to consent. In this instance, although Mr Barbulescu knew that it was prohibited to use work computers for personal purposes, he had not been informed that the employer was monitoring his communications.

The ECHR found that there was a failure to strike a fair balance between the employer’s and the employee’s interests, in breach of Article 8 of the Human Rights Act 1998. Consequently the employee was entitled to compensation.

If you have any employment law queries, please contact Kerry Hudson on kerry.hudson@bttj.com or 02476 531532.

This Bulletin is not intended to provide advice.

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• Morrisons liable for an assault by an employee
• Holiday pay and commission
• Monitoring personal emails at work
• The National living Wage
• Transgender Staff: Government guide

Morrisons liable for an assault by an employee

The Supreme Court has ruled that the supermarket, Morrisons was liable for a physical assault by one of its employees.

Mr Mohamud stopped at a petrol station and enquired about printing some documents from a USB stick. Mr Kahn was working behind the counter at Morrisons and ordered him off the premises with a torrent of threatening and racist abuse. When Mr Mohamud returned to his car, Mr Kahn opened the car door and punched him on the head and continued to assault him.

As a matter of general law, an employer can be liable for the acts of its employees, provided it can be shown that the acts took place in the course of their employment. In this case, the violence was a re-enforcement of Mr Kahn’s order to leave and this was connected to his job. This was sufficient to make Morrisons liable for Mr Kahn’s acts.

Holiday pay and commission

In the case of Lock v British Gas, Mr Lock was employed as an energy trader and commission represented about 60% of his pay. When he was on holiday, he was paid his basic pay and commission based on his earlier sales; however, his commission payments were lower in the months which followed his holiday as he had been unable to generate sales whilst on holiday.

The issue here was whether the Working Time Regulations 1998 could be interpreted in line with EU law on the matter of calculating holiday pay. The Employment Appeal Tribunal upheld an earlier Tribunal decision that Mr Lock was entitled to commission as part of his holiday pay.

This is not surprising as it has been clear for some time that EU law requires that four weeks of annual holiday entitlement must be paid at a rate which reflects a worker’s normal remuneration. Despite this, it is understood that British Gas is seeking permission to appeal the recent ruling.

Pending a definitive ruling on the issues, uncertainty remains about how to deal with claims for underpaid holiday and how to calculate holiday pay going forward.

Monitoring of Personal Messages at Work

In the case of Barbulescu v Romania, the European Court of Human Rights decided on the right to privacy under the European Convention on Human Rights.

The employee, Mr Barbulescu, was dismissed for personal internet use at work which was in breach of the employer’s rules. As part of its investigation, the employer accessed intimate messages sent by the employee to his fiancée and his brother. The messages were used in disciplinary proceedings against the employee.

The European Court of Human Rights held that the monitoring of his internet usage and the use of the Yahoo Messages in disciplinary proceedings did interfere with his right to privacy but, in this instance, the employer’s actions were reasonable. This was because it was reasonable for the employer to check that Mr Barbulescu was completing work tasks during work time. The decision relied on the fact that Mr Barbulescu had told his employer that the account contained only client-related communications.

The case received a great deal of media attention and some of it gave the misleading impression that the decision gives employers the unfettered right to check on employee’s personal emails. However, the decision does not overrule previous caselaw from the European Court of Human Rights on employees’ reasonable expectation of privacy and the need for any interference in that privacy to be reasonable.

National Living Wage

Employers should be preparing for the introduction of the National Living Wage which comes into effect from 1^st April 2016. The new National Living Wage of £7.20 per hour will be introduced for workers aged 25 and above. The pre-existing National Minimum Wage will continue to apply to workers aged 24 and under.

New Government Guide: Transgender Staff

The profile of Transgender issues has been raised over recent times, with the release of the film “The Danish Girl”.

It is therefore timely that the Government Equalities Office has recently published a new guide for employers on recruitment and retention of transgender staff.

It is designed to provide employers with practical advice, suggestions and ideas on the recruitment and retention of transgender employees and potential employees. It is also intended as a guide for the managers and transgender staff themselves.

If you have any employment law queries, please contact Kerry Hudson on Kerry.Hudson@bttj.com or 02476 531532.

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