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Employment

An increasing awareness of data protection rights among employees means employers should carefully consider how they handle information requests from staff, with a wrong move potentially resulting in significant financial and reputational costs for the employer as well as significant diversion of time and resource.

The issue of whether a worker is to be regarded as carrying out “time work” and therefore entitled to the National Minimum wage  (“NMW”) for the full duration of their shift (even if they may be sleeping during this time) requires multiple factors to  be  taken into account.   If the worker is not carrying out such “time work” and is merely to be regarded as “available and required to be available … for the purposes of working”, then they will only be entitled to the NMW in relation to time when they are awake for the purpose of carrying out relevant duties.

Figures released this week by the Office for National Statistics (ONS) show the average working week in the UK continues to rise.

Today, Thursday (6 April 2017), the new ‘apprenticeship levy’ will come into force.The levy, which was introduced by sections 98 to 121 of the Finance Act 2016, will be potentially applicable to all UK employers and will go towards the cost of apprenticeship training.

We are almost one quarter of the way through 2017 (already?!). Each year the beginning of April is notable from an employment law perspective, with a number of changes usually coming into force. This year is no different and so this week we take a look at some of the key changes coming next month.

Instead of being the focus of the usual stories about excess pay for football players, St Mirren Football Club was among a list of employers to be ‘named and shamed’ last week for failing to pay their staff the national minimum wage (NMW). The Paisley side, who currently sit rock bottom of the Scottish Championship, featured in the list published by the Department of Business, Energy and Industrial Strategy (BEIS). The list named 359 UK employers who, between them, underpaid 15,513 workers a massive £994,685. This included a total of 16 employers north of the border, who cumulatively owed 125 workers £29,611, although over half of that total was owed by a charity social care firm ‘Crossroads Caring Scotland’. KFC on Aberdeen’s Union Street was reported to have failed to pay a total of over £1,000 to 23 workers. Other notable high street names to feature on the list included Debenhams and Subway.

In my last Insight piece, A Warning About Warnings, I discussed the circumstances in which an employer may take account of expired warnings for the purposes of determining the outcome of a subsequent disciplinary process. But what if a final written warning is clearly live so that, on the face of it,  the employer is entitled to take account of that warning? Surely the employer who treats subsequent misconduct taken together with the final warning as sufficient to dismiss is likely to be on safe ground?

Most larger employers will have a disciplinary policy involving an escalating process of warnings and culminating in dismissal. The policy may often set out examples of what may be considered to be gross misconduct (justifying dismissal of itself regardless of whether previous warnings have been issued) and it may also provide for warnings to have a limited life so that on expiry of the specified period they should not be taken into account in determining the outcome of a subsequent disciplinary process in relation to an act of alleged misconduct which took place after the expiry of the relevant warning.

Chambers UK 2018

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