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Friday 23 October 2015

Employment Law Bulletin October 2015

Welcome

A new ‘Living Wage’?

On 1st October the National Minimum Wage rose to £6.70 per hour for those aged 21 and over. An increase in the rate happens every October, of course, but next year we will enter new territory. In April 2016 a special supplement will be added to the National Minimum Wage for workers aged 25 and over to make up a ‘National Living Wage’ of £7.20 per hour.

Travelling to work

Working time, as defined by the Working Time Regulations, is time when a worker is working, carrying out his or her activities or duties and is at the employer’s disposal. For employees who need to travel as part of their job, it is pretty clear that that travelling time has to count as working time. The journey is being undertaken on the instructions of the employer and it is necessary to allow the employee to do whatever he or she has to do.

On-call time and the National Minimum Wage

Many workers – particularly in the care or hospitality sectors – are required to sleep over in the workplace so that they can be available for work if needed. Generally they are not entitled to be paid at the rate of the National Minimum Wage for this time as long as they are provided with adequate sleeping facilities. However there have been recent cases where it has been held that sleeping over counts as work and must be paid as such.

Who transfers under TUPE? Part One

When a transfer takes place under the Transfer of Employment (Protection of Employment) Regulations 2006, the employees who are assigned to the unit being transferred automatically become employed by the new employer. The Regulations state that ‘assigned’ means assigned ‘immediately before’ the transfer takes place, so an employee who has left the unit some time earlier will not be covered and will remain with the old employer. Simple really.

Who Transfers under TUPE  Part two

While employees who are temporarily laid off can still transfer under TUPE, the same does not seem to be true for those who are permanently off sick. In BT Managed Services Ltd v Edwards the employee had been off work for over 5 years and it was accepted that he had no reasonable prospect of ever returning. He had been retained as an employee so that he could enjoy sickness benefits under a permanent health insurance scheme, although it seems that these benefits had eventually ended and he was now receiving discretionary payments directly from the employer.

Absence-related dismissals

An employer faced with long-term absence from an employee must take reasonable steps to discover when/if a return to work is likely – including obtaining medical reports – before deciding to dismiss. Striking the right balance can be difficult, but ultimately an employer is not expected to keep a job open indefinitely.

Disciplinary hearings – the role of HR

The fundamental requirement of a disciplinary hearing is that the employee understands the allegations being made, has a chance to put his or her side of the story and has that explanation considered by the employer with an open mind. Where an employer has an HR department, it usually plays an important part in making sure that a fair procedure is followed – but in Ramphal v Department for Transport, the Employment Appeal Tribunal held that HR’s behind the scenes influence went too far.

And Finally…
Boredom as a health risk

Work can be a hazardous place and the law expects employers to take care to ensure that workers are kept safe.

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