Number 2 20 May 2014

Welcome WELCOME to Conference Chambers' second newsletter. Thank you for your positive feedback on our first effort pub-lished earlier this month. This edition has a National Minimum Wage theme. The reason for that is there are, in our view, still too many employers who seem unaware of their legal obligations when pertaining to or seeking to apply the NMW. We are not referring to those who are un-aware of the current rate(s) but those who are unaware of their legal requirements in principle simply to pay it! This ought not to be the case today, not only because the law has been in exist-ence for a decade and a half but there is plenty of good inform-ation informing employers (and employees) of the legal position and one's entitlement. A failure to comply with this law leaves an employer exposed to, amongst other things, a claim for unpaid

wages. The following is a case in point.

Esparon v Slavikovska UKEAT/0217/12/DA In Esparon the claimant worked as a care worker at the employ-er's residential care home. As is the case I suspect with most, if not all, residential care homes, she was required to work a num-ber of 'sleep-in' night shifts and be available for emergency purposes. Statutory provisions required the employer to ensure that at all times an appropriate number of suitably qualified,

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National Minimum Wage In a month where there has been much focus on the National Min-imum Wage (NMW) in Switzerland, we thought we would touch on this subject in this issue of our newsletter. In case some are unfa-miliar with recent developments in Switzerland, on 18 May 2014 it held a referendum on what has been reported would have been the highest NMW in the world at around £15 per hour.

The UK To get an idea of the scale of the Swiss referendum, the current NMW for workers aged 21 and over in the UK is £6.31 per hour. However, as is traditional in the UK, in October (1st to be precise) we shall see a rise, which will be around 3%, to £6.50 for the same age group of workers. When it was first introduced in April 1999 the rate was £3.60 (for adults), which, if reports are to be believed, over 1.5 million workers were earning below that at the time. In March 2014 the Department for Business, Innovation & Skills announced that the new rate was set to benefit one-million workers. Incidentally, 76% of voters in the Swiss referen-dum rejected the proposal.

CONFERENCE CHAMBERS NEWSLETTER

Number 2 20 May 2014

competent and experienced persons were working at the care home. The claimant maintained that she was required to carry out certain duties during the night shift and was awarded a lump sum for each sleep-in shift, but at a rate substantially less than the hourly rate of the NMW. Before the employment tribunal she claimed, amongst other things, that she was entitled to be paid the NMW as she was carrying out 'time work' as defined by the relevant statute and regulations. The employment tribunal found in her favour. The employer appealed to the Employment Appeal Tribunal (EAT).

Dismissing the employer's appeal, the EAT stated, amongst other things, "An important consideration in determining whether an employee is carrying out time work by reason of presence at the [employer's] premises 'just in case' must be why the employer re-quires the employee to be on the premises. If [it] requires the em-ployee to be on the premises pursuant to a statutory requirement to have a suitable person on the premises "just in case" that would be a powerful indicator that the employee is being paid simply to be there and is thus deemed to be working regardless of whether work is actually carried out."

Conclusion

ON occasions it is fairly obvious that a worker ought to be paid the NMW, others less so. If in doubt, seek specific legal advice.

29 May 2014 Seminar

On 29 May 2014 Ryan shall be giving a 3 hours' seminar in East-cote on good practices for employers when dealing with staff dis-ciplinary and grievances. Many errors that lead to complaints of unfair dismissal are avoidable. The current maximum compensa-tion that can be awarded for unfair dismissal is the lower of £76,574 or 52 weeks of a complainant's salary. If you would like to attend this seminar or are interested in attending or arranging for any future seminars then please contact us accordingly. The fee for 29 May 2014 seminar is £25 in advance for each attendee. Tea, coffee and biscuits will be provided.

Contact details: Carole Paterson or Ryan Clement Conference Chambers 272 Field End Road, Middlesex HA4 9NA Tel: 0208 582 0500 Fax: 0800 2425323 carole@conferencechambers.com ryan@conferencechambers.com www.ConferenceChambers.com

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Who is entitled to the NMW? Despite the NMW having been part of our laws for some 15 years now, some employers are, to give the benefit of the doubt, unaware of who is entitled to the NMW. Of course, the following is no substi-tute for specific legal advice and is not exhaustive. So, firstly, work-ers must be school leaving age or over. Secondly, they are entitled to the NMW if they work part-time, are casual labourers, agency workers, workers and homeworkers paid by the num-ber of items they make, appren-tices, trainees, workers on proba-tion, agricultural workers, foreign workers, seafarers, and offshore workers to name a few.

Who is not entitled? Again, this is not an exhaustive list but workers who are self-em-ployed, running their own busi-ness, company directors (I shall return to this in a later issue), vo-lunteers or voluntary workers, family members of the employer living in the employer’s home, non-family members living in the employer’s home who share in the work and leisure activities, are treated as one of the family and aren’t charged for meals or ac-commodation (I shall return to this in a later issue), and prisoners to name a few.

Contracting out? An employer must pay its workers the NMW. Contracts that seek to pay below the NMW are not leg-ally binding.