News and Comment

News and Comment

Pregnancy and maternity – a negative experience for working mothers?

We are often contacted by new and expectant mothers who have experienced poor treatment at work.

Our own experience has now been confirmed by a Government commissioned survey, which found that a startling 77% of mothers had had a negative or possibly discriminatory experience at work during pregnancy, maternity leave and/or on their return from maternity leave.  Scaled up, this could mean that as many as 390,000 mothers a year are experiencing poor treatment as a consequence of their status.

Women make up almost half of the UK workforce and working parents around 36% of the workforce.  We have had legislation in place to protect mothers for about 50 years.  Surely it is time for a culture change?

A National Living Wage from 1 April 2016

From 1 April 2016, the government will introduce a new mandatory national living wage (NLW) for workers aged 25 and above, initially set at £7.20.  The Adult NMW rate (£6.70) will continue to apply for those aged 21 to 24 with a sliding scale (reducing with age) thereafter.

Financial penalties for unpaid tribunal awards

We are very pleased to see that the Government has finally taken action to seek to reduce the numbers of employers who refuse to pay a Tribunal award or ACAS settlement (currently estimated to be about a third).  There is nothing more galling for us (and our clients) than to go through the time, expense and stress (not to mention Tribunal fees) involved in obtaining justice, then for that employer to (in some cases) flagrantly avoid payment.  New rules will mean that employers may have to pay an additional penalty (which may be up to 50% of the unpaid amount) to the Secretary of State if payment of an award or settlement is not made promptly.

New regulations on “Shared Parental leave” came into force on Monday, 1st December.

Although they will only affect those with a new baby (or babies) due on or after 5 April 2015, employers and employees are already asking how the new scheme applies.

The key points on “Shared Parental leave” are:-

  • The new regime gives parents the option to share leave for a year after a child is born (or adopted);
  • It is designed to “challenge the old-fashioned assumption that women will always be the parent that stays at home” (or so says Nick Clegg).
  • It is optional; the current “maternity leave” regime whereby the mother can take up to a year’s leave – and the father 2 weeks’ paternity leave – remains available. Shared Parental leave only becomes available when a mother does not take her full amount of maternity leave.
  • Under the new scheme, eligible employees will be able to share up to 50 weeks of shared parental leave and up to 37 weeks of statutory shared parental pay.
  • Parents can choose how much of the Shared Parental Leave each of them take;
  • Shared Parental Leave can be taken in up to 3 different “blocks” allowing some flexibility.
  • It also applies to adoptions (both UK and overseas) and to surrogacy arrangements.

It is complicated – at the last count, there were 12 statutory instruments setting out how the new regime will work! So, whilst the concept may be simple, in practice, the new regime is likely to leave many employees and employers scratching their heads.

If you want to get sorted before the 1st April or alternatively just want to know more how the scheme may affect either yourself or your business then call us now on 0117 939 0350 or alternatively email our Employment Law & HR expert Tamsin James at tj@watkinssolicitors.co.uk

Overtime and holiday pay….unravelled

Holiday pay has been in the headlines this week. Reports have stated that 1 in 6 workers or “millions of employees” can now claim extra holiday pay. This is an exaggeration of the actual position, which is a little more complicated, as Tamsin James explains.

Summary

Calculating holiday pay is a tricky business at the best of times. It has been made even more complicated recently as the UK and European courts have not been able to agree on the correct approach. This week, a UK court decided that UK rules should be changed so that employers now need to include paid overtime in their calculation of holiday pay. This will affect payroll costs going forward for some employers.

What does it mean for you?

The ruling will affect you (or your employees) if you or they get:-

  • paid regular overtime which cannot be said to be purely “voluntary”
  • fixed commission payments; and/or
  • other payments “intrinsically linked” to work, such as shift allowances, seniority payments and some travel allowances (except where these merely cover expenses).

It may not impact as much as reports suggest because:-

  • The ruling only applies to 20 out of the 28 days statutory holiday per year (it does not extend to the additional 1.6 weeks leave provided for under UK law).
  • Concerns that workers could claim for years of backdated holiday pay are overstated; most workers will only be able to recover underpayments made in the last three months. Note that time limits are tight and any claims for underpayment of holiday pay should be brought within 3 months of the last (holiday) payment.
  • It is not going to be the end of the matter; it is expected that the issue will be looked at by the Court of Appeal and by a Government “taskforce” set up to review the situation.
  • One question that remains unresolved is the period of time used to calculate “average pay”. A 12 week snapshot is usually used but this could now lead to distortions in holiday pay. For example, a retail worker who does a lot of overtime over Christmas could now have a far higher “average pay” if they took leave in January.

Can you earn commission while on holiday?

I have posted before about holiday pay – in that case, the question was whether overtime should be included in holiday pay (the answer was, broadly, yes).

In a further decision issued recently, it was decided that commission payments should also be included in the calculation of holiday pay.  So, it was found that Mr Lock, who worked for British Gas as a commission-based salesman, should be able to go on holiday without taking a significant drop in earnings (British Gas had previously been paying his basic salary only when he was on holiday).

The case has been supported by UNISON and already they are saying that the case will have implications for thousands of workers across Europe.  There are already many hundreds of claims for back-pay of holiday before the Employment Tribunals.

We increasingly see holiday pay being wrongly calculated.  Often, this is not picked up until after employment has ended.  It is a good idea to scrutinise your payslips – and to take advice if necessary.

Contact Tamsin for more information.