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Changes to Payslips – April 2019

Changes to Payslips – April 2019

Currently, an employee (but not other types of worker) is entitled to be given a written itemised pay statement by his employer at or before the time any wages are paid to him. Under s.8 of the Employment Rights Act 1996 (“ERA”), the statement must contain particulars of:
• the gross amount of wages
• the amounts of any variable and any relevant fixed deductions and the purpose for which they have been made
• the net amount of wages
• where different parts of the net amount are paid in different ways, the amount and method of payment of each part
However, new legislation in force from 6 April 2019 amends s.8 ERA and will require all employers to (a) provide payslips to all workers (and not just employees), and (b) show hours on payslips where the pay varies by the amount of time worked.
This comes in the wake of the Taylor review of modern working practices in 2017 which, amongst many other things, called for clarity on legislation surrounding categories of workers and pay, including National Minimum Wage and National Living Wage.
The new requirement for an itemised pay statement to contain information regarding the number of hours worked by an employee for which they are being paid is only in situations where the employee’s pay varies as a consequence of the time worked.
The government has released some guidance on this and confirms that where pay varies depending on hours worked; –
• the number of hours paid for on this basis (i.e. on the amount of time worked) must be shown
• any other hours do not need to be shown, but can be shown if it would be helpful to do so (for example, where a worker has a fixed salary each month, and works variable overtime with additional pay at an hourly rate, only the hours of overtime need to be shown)
• the hours can be shown either as a single total of all such hours in the pay period, or they can be broken down into separate figures for different types of work or different rates of pay
• it should be made clear which pay period the hours were worked in
• the hours paid for only need to be shown for pay periods which begin on or after 6 April 2019.
The government guidance goes on to confirm that if a worker’s pay does not vary by time worked, i.e. because they are paid a fixed salary each month, there is no need to include an hourly figure to account for variations in pay caused by taking unpaid leave or being on statutory sick pay. Such cases do not amount to pay varying depending on the amount of time worked, but rather to pay varying because of a departure from the normal working and pay arrangements, caused by the unpaid leave or statutory sick pay. However, if a worker is paid according to the amount of time worked and takes unpaid leave or receives statutory sick pay, any hours they did work will still need to be included on their payslip.
The intention is that the new payslip requirements will better enable workers to understand what they are being paid and identify whether the employer is meeting its obligations in relation to minimum pay; namely payment of the National Minimum Wage and National Living Wage.
A worker who thinks that they have not received a payslip, or that the payslip they have received lacks the required information, may bring a claim before an Employment Tribunal. If the Tribunal agrees, it must make a declaration to this effect, which it may publish on its website. The Tribunal may also order repayment of un-notified deductions made in the 13 weeks preceding the presentation of the claim, even where the employer was otherwise entitled to make the deductions.

Construction Case Law Update – Part 1 of 2019

The Enforcement of Adjudicators’ Awards under the Housing Grants, Construction and Regeneration Act 1996: Part 1 of 2019
Kenneth T. Salmon and Katy Ormston

This article forms Part 1 for 2019 of the series of articles continuing the reporting and review of cases on the enforcement of adjudicators’ awards begun in the Journal of the Chartered Institute of Arbitrators.

107772.001 SH Construction Case Booklet

This document is available to be read on full screen or alternatively can be downloaded or printed using the icons at the bottom of the publication.

This Part 1 reports on the following developments and cases:

Amey LG Ltd v Amey Birmingham Highway Ltd
Abuse of Process

Barry M Cosmetics Ltd v Merit Holdings Ltd
Dispute – whether crystallised

Birmingham City Council v Amey Highways Ltd
Enforcement – Fraud

Michael J Lonsdale (Electrical) Ltd v Bresco
Electrical Services Ltd and Primus Build Ltd v Cannon Corporate Ltd
Insolvency – Effect on Enforcement

Skymist Holdings Ltd v Grandlane Developments Ltd
Jurisdiction

Synergy Gas Services Ltd v Northern Gas Heating Ltd
Natural Justice – Construction of Contract Term

Jurisdiction Fern & another v West and others (Haven Build)
Parties – Correct name

Gosvenor London Ltd v Aygun Aluminum UK Ltd
Stay of Execution – Dissipation of Assets

Ove Arup & Partners International Ltd v Coleman Bennett International Consultancy PLC
Waiver – challenge and reservation

Reasonable and proper cause to suspend

Reasonable and proper cause to suspend

In the case of Mayor and Burgesses of the London Borough of Lambeth v Agoreyo, the Court of Appeal examined the use by a school of the power to suspend and considered potential breach, in this respect, of the term of trust and confidence.

In this case, Ms Agoreyo was an experienced primary school teacher. Allegations were made against her that she had used unreasonable force towards children on more than one occasion. Two of these instances were investigated by the school and Ms Agoreyo was found to have used reasonable force. However, following a third incident, Ms Agoreyo was suspended and promptly resigned.

Ms Agoreyo brought a county court claim for breach of contract against the local authority, claiming that her suspension was a breach of the implied duty of trust and confidence, entitling her to resign in response. The county court rejected Ms Agoreyo’s claim and found that the Respondent had clear reasonable and proper cause to suspend Ms Agoreyo due to the Respondent’s duty to protect the children pending a full investigation.

Ms Agoreyo appealed.

The High Court allowed the appeal and found that Ms Agoreyo’s suspension breached the implied term of trust and confidence as it was a ‘knee-jerk reaction’ to the complaint against Ms Agoreyo.

The Court of Appeal allowed the appeal, holding that the High Court had wrongly interfered with the trial judge’s findings of fact, rather than identifying any misdirection of law or other error of principle. The Court of Appeal also erred by introducing a test of necessity – in this respect, the High Court had asked whether it was reasonable and/or necessary for Ms Agoreyo to be suspended. The Court of Appeal made it clear that only test is whether there was reasonable and proper cause to suspend the employee in question.

Was my ex-partner’s behaviour unreasonable?

Was my ex-partner’s behaviour unreasonable?

In order to obtain a divorce, the petitioner must show that the marriage has irretrievably broken down.  This is proved by one of 5 ‘facts’, namely unreasonable behaviour, adultery, desertion, two years’ separation with consent and five years’ separation where consent from the other party is not required. At present there is no such thing as a ‘no-fault divorce’ in England and Wales unless you have been separated for 2 years and so one party has to ‘blame’ the other for the breakdown of their marriage.

More than half of women and more than one third of men who petition for divorce cite their ex-partner’s unreasonable behaviour, making it the most common ground for divorce. But what does ‘unreasonable behaviour’ actually mean? Unreasonable behaviour can cover a whole range of actions and it is subjective in nature. It is about the effect the behaviour has on the petitioner. Some common examples include a lack of support around the house, working long hours or not socialising together. More serious allegations could include emotional or physical abuse or dissipating the family’s finances.

A petitioner should provide several examples of such behaviour and explain the impact it has had on them. If parties are seeking an amicable resolution, the particulars of the unreasonable behaviour could be agreed in advance of the petitioner being filed at court.

It is important to note that the reason for divorce will rarely affect the distribution of finances following the divorce.

Confidentiality Clauses and Non-Disclosure Agreements

Confidentiality Clauses and Non-Disclosure Agreements

Confidentiality clauses and non-disclosure agreements (NDAs) can serve very useful purposes in an employment context.  Such clauses are generally used in two ways; as part of the employment contract and as part of a settlement agreement to allow both employee and employer to move on from an employment-related dispute without recourse to the Employment Tribunal.

However, the use of confidentiality clauses and NDAs has received much criticism of late given concerns that they may be used to hide inappropriate, discriminatory or illegal behaviour, such as in cases of sexual harassment in the workplace, or to prevent the reporting of such behaviour to the proper authorities.

Currently, confidentiality clauses or NDAs are void if they prevent someone making a protected disclosure (also known as whistleblowing), or taking a case to a tribunal (unless the clause is within a COT3 or settlement agreement).

In the wake of recent cases exposing the misuse of such clauses, the government is now consulting on whether the take further legislative measures, including the following:-

  • Banning confidentiality clauses which purport to prevent a victim reporting or discussing potential criminal acts to or with the police
  • Requiring confidentiality clauses in employment contracts to be set out within the written statement of terms of employment issued at the start of the employment relationship
  • Ensuring confidentiality clauses clearly set out which disclosures are not prohibited by the clause, in default of which the entire clause would be void

Employers should consider reviewing any contractual provisions currently in place to protect confidential information and keep the following in mind; –

  • Employers with a particular issue of confidentiality may wish to consider seeking legal advice as to whether it would be beneficial to have a separate confidentiality agreement rather than including a standard confidentiality clause within an employment contract or settlement agreement
  • Employers should make it clear what employees are not prevented from disclosing; such as information that is already in the public domain
  • Employers should consider limiting the duration of a confidentiality clause rather than making it last forever
  • To avoid any implication that an Employer took unfair advantage of an employee, employers should consider having employees seek independent legal advice before signing an NDA and having the legal advisor sign a certificate to confirm that advice has been given. Clearly this is already part and parcel of signing a settlement agreement but employers should take advice if the clause falls outside of such a process.

ACAS Guidance on Age Discrimination at Work

ACAS Guidance on Age Discrimination at Work

The Advisory, Conciliation and Arbitration Service (Acas) has published guidance designed to inform employers and staff on matters relating to age discrimination.  Under the Equality Act 2010, age is one of the nine special areas of life guarded as what is known as protected characteristics.

The guidance provides a helpful overview of the basic principles of age discrimination and the risks that could potentially arise within the workplace.   Its purpose is to help employers and line managers manage an age diverse workforce, prevent unfair treatment at work, and eradicate bias against older and younger workers. It describes the various types of age discrimination and, in doing so, identifies some particular problem areas which all employers should be vigilant of.  These situations can arise during the recruitment process, at trainings and promotion stages, during performance management, and at retirement. For example, at the recruitment stage, employers are advised to set out the type or types of experience needed for a role rather than ask for a certain number of years’ experience.

The guidance points out that age discrimination could lead to:

  • poor decision-making when recruiting and promoting or deciding who gets trained
  • the demotivation of existing staff who become aware of the stereotyping
  • less trust among colleagues
  • discrimination claims

The guidance also outlines instances where different treatment because of age can or may be lawful. These include:

  • where the need for certain types of discrimination because of age can be lawfully proved by the employer
  • the National Minimum Wage and National Living Wage
  • pay and any extra benefits and perks linked to certain periods of time with the employer
  • where being a particular age or within a particular age range, or not a particular age, is a legal requirement of the job. This is likely in only very limited circumstances. In law, this is known as an ‘occupational requirement’
  • some circumstances in redundancy. For example, deciding to keep staff who have been with the employer for longer, and making redundant staff with less time with the firm. This could be allowed if the employer can prove a lawful business reason in the circumstances—for example, keeping the most experienced staff who are fully trained and skilled as they are essential to the future of the restructured company

Employees or job applicants who feel they have been discriminated against on the grounds of their age can make a claim to an employment tribunal however the guidance does recommend that they take initial steps to speak with the employer informally to attempt to resolve the dispute.

The full guidance document can be viewed on the ACAS website.

Unmarried couples – Why you need a Will!

Unmarried couples – Why you need a Will!

With Valentine’s Day just gone, flowers placed in the vase and cards on the mantelpiece, those of us lucky enough to have a special person in their lives can feel we have done enough to show we care. But for couples both married and unmarried many have not protected their loved ones (children included)  in the event of death.

It is recommended that everyone has a valid Will in place to ensure that your estate passes in line with your wishes. This is especially important for unmarried couples that wish to provide for each other and their partner’s children in the event of their death.

Under the Intestacy Rules, a surviving partner would not be protected or provided for if you have not married, which can lead to serious financial problems to compound the distress of losing your loved one. This is as important when considering children of the surviving partner, who again would not be provided for at all under intestacy rules. This is something to consider if you would like to provide for your partner’s children from your estate when you pass away.

The surviving partner is also affected with regard to arranging the funeral and wake of their loved one as if they are not appointed as an Executor of their late partner’s Will, it is possible they would have no say in the funeral arrangements.

In a Will you can choose your executors who will ultimately be responsible for ensuring that the wishes in your Will are carried out and also detail who should receive your estate on your death.

No one likes to think about effects on others of their death, but by not planning for that time it can cause serious hardship for those loved ones you need to protect.

For further information contact our private client team on 0161 672 1242.

Update – Confidentiality

Update – Confidentiality

In the case of Linklaters LLP v Mellish, the High Court considered whether a former employee’s duty of confidentiality outweighs the public interest in the publication of information on the employer’s current culture and the position of women in the workplace.

The Defendant was formerly the Director of Business Development at Magic Circle firm, Linklaters. He had been dismissed on six months’ notice with an ex gratia payment. His contract of employment contained an express confidentiality obligation which applied post termination. Shortly after leaving, he told the firm that he intended to share his impressions of the “current culture” of the firm and its ‘”ongoing struggle” with women in the workplace’ and that he would be giving interviews (although he did not say who with) in the first two weeks of February 2019.

The Claimant was granted an injunction, until 11 February 2019, to restrain the Defendant, from disclosing certain confidential information obtained from, and relating to, his employment, which Linklaters contended was confidential information relating to partners and/or employees of the firm and protected by express duties of confidence owed to it by the defendant, pursuant to his contract of employment. Linklaters did not however, seek to restrain the Defendant from sharing in general terms his impressions of the firm’s current culture. The High Court accepted that there was a real risk of publication which was sufficient to justify the interference with the Defendant’s freedom of expression, and held that it was likely that Linklaters would establish at trial that publication should not be allowed. The information fell within the contractual duty of confidence, it was not in the public domain, and the interests of the third parties also bolstered the case. While there may be a legitimate public interest in firms performing their moral and social duties to their staff, Lord Justine Warby ruled that that did not override the legitimate interest in maintaining confidentiality. The Defendant was also ordered to disclose the identities of those he may have already disclosed the information to.
It is an interesting outcome given the recent focus on the treatment of female employees in the workplace. The case has been listed for a full hearing on 11 February 2019.

Continuity of Employment

Continuity of Employment

In the case of SD (Aberdeen) v Wright, the Employment Appeal Tribunal (EAT) considered whether an Employment Tribunal was entitled to draw an inference that two companies were associated in a case where a relevant director had failed to give evidence to the contrary. In this case, the Claimant, Mr Wright, worked for entities trading as ‘AMPM’ from 20th May 2014 to 23rd August 2016. He was then dismissed but was unclear who to sue for unfair dismissal. As he was unclear on who to sue, the Claimant brought claims against 19 companies. An Employment Tribunal determined that the Claimant was employed by CP Ltd between 20th May 2014 and 3rd September 2015 and by SD limited from 3rd September 2015 until 23rd August 2016. The Tribunal also determined that these two entities were associated companies. SD appealed. In this case the EAT determined that the Tribunal was entitled to draw an inference that the Companies were associated on the basis that a director (Mr Kerr), described as a “principal actor” in both companies could have given evidence to shed light on the issue, but failed to do so.

Guidelines on Commercial Property Service Charges

Guidelines on Commercial Property Service Charges

A new Professional Statement issued by RICS comes into force on 1st April 2019, setting a marker for standards of commercial property management.

The aims and objectives of the Professional Statement are to:

  • improve general standards and promote best practice, uniformity, fairness and transparency in the management and administration of services charges in commercial property
  • ensure timely issue of budgets and year-end certificates
  • reduce the causes of disputes and to provide guidance on resolution, and
  • provide guidance to solicitors, their clients (whether owners or occupiers) and managers of service charges in the negotiation, drafting, interpretation and operation of leases, in accordance with best practice

The full Professional Statement can be downloaded here.

All RICS members and regulated firms engaged in property mamnagement must comply with the new guidelines.

 

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