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Latest Brief - Week Ending 23 January 2015

The rising cost of holidays?

John Lewis and Waitrose are among the first large employers to change the way they calculate holiday pay for their workers.  They are to include non-guaranteed overtime in its employees' statutory holiday pay from February 2015 and will make a one off back payment for any underpaid holiday taken between November 2014 and February 2015 to prevent any claims.  

The Government has previously announced that it is to limit how long employees can go back in respect of underpaid holiday.  New Regulations will limit any claims for unlawful deductions from pay submitted after 1st July 2015 to 2 years.  This limitation is very welcome for employers since it limits potential exposure after this date.  Until July 2015, employees can claim under paid holiday pay going back potentially to when the Working Time Regulations were originally introduced in 1998, although the recent Bear Scotland v Fulton Employment Appeal Tribunal case prevents unlimited claims.  If there has been a gap of more than 3 months during which an employer has paid the holiday pay correctly, then the employee cannot go back beyond this to claim historic underpayments of holiday.

Revised ACAS code on right of accompaniment

ACAS released a final draft of its amended code on 16th January 2015 relating to changes brought about by a case in which our firm represented the employer!  In Toal and another v GB Oils Ltd [2013] IRLR 696 the Employment Appeal Tribunal held that a worker has an absolute right to choose a companion, provided that they are a fellow worker, trade union representative or official.  Whilst the right to be accompanied is absolute, compensation for any breach may be nominal, as was the case here. 

The absolute right for a worker to choose their companion is not linked to the statutory requirement for the request to be reasonable. 

The new code, which awaits Parliamentary approval provides amongst other things that:

Employers must agree to a worker's request to be accompanied by any chosen companion providing they are a fellow worker, trade union representative or official.

Workers can change their mind on who their companion is. 

Where possible, a worker should provide their employer with the name of the companion and specify whether it is a fellow worker, trade union representative or official. 

Latest Brief - Week Ending 16 January 2015

Fit for work anyone?

Well, not quite anyone.  GPs in Sheffield area are the first in the Country to be able to refer patients to the Fit for Work service, aimed at helping get long term absent employees back to work.  This service is expected to be rolled out to other parts of the Country, starting in Spring 2015.  

NMW - Named and shamed…..but is it correct and is it enough? 

37 employers have been named and shamed by the Government for not paying the National Minimum Wage (NMW) to its workers.  Of those 37 employers named, 15 had failed to pay less than £1,000 to its employers.  The Government has recently confirmed that 2 employers named and shamed in the last report in June 2014 were incorrect!

The TUC’s report last week called for improvements in the NMW enforcement regime. The TUC believe that upwards of 250,000 employees are currently paid less than the NMW and suggests that companies who fail to pay the NMW should be fined up to £75,000. The report highlights scams used by errant employers such as overpayment of rent by employees, under reporting of hours etc.  

And, we are led to believe that members of the Low Pay Commission are split on whether to recommend a 50p an hour rise in the NMW to take it to £7 for adult workers (rather than the current £6.50 an hour).