Employment Law Update – November 2021

Risk involved with working unpaid hours due to working from home

Following the COVID-19 pandemic, working in excess of contracted hours from home has become the ‘norm’ for many workers.

The pandemic caused a shift to home-working, whether that be full-time or as part of a hybrid working policy, under which workers split their time between the office and home. As a result, 1 in 10 people now say they work at least 20 hours a week for free.

To accommodate home-working, companies have adopted ways for their staff to carry out work remotely by providing them with IT equipment and mobile phones.  With often no separation between living and working areas and with no commute, workers are taking less breaks and not logging off at their usual times, there is an increased loss of work-life boundaries.

Often, workers hate to say no: if a colleague emails after hours, they are likely to reply; if there’s a call scheduled for a time outside their work hours, they will join; if there is a need to work late, they will do so, even if this commitment is not necessarily reflected within their salary. Employees are often scared of losing their job and feel pressure from their colleagues, so if everyone else is working longer hours, they will too. Some roles come with even higher pressure and employers should be aware of this and consider their workers’ mental health.

Employers need to keep in mind the Working Time Regulations 1998. Under these Regulations, a worker must not work over 48 hours a week, unless they have agreed to opt-out of the Regulations. If you are aware of workers working in excess of 48 hours, as a result of home-working, you may want to ensure they have signed such an agreement, or you could face civil claims. Depending on the level of pay, this could also conceivably result in employees falling below the national minimum/living wage requirements in certain cases.

Employers should also bear in mind that some workers are becoming fed up with the excessive hours. Excessive hours can have a negative impact on an employee’s wellbeing and affect their mental health. This could lead to an increase in sickness absence or cause them to look for a job elsewhere, putting employers at risk of losing valued and experienced workers.

 Comment

If you are concerned that you may be at risk of breaching the Working Time Regulations 1998 due to the implementation of home-working, whether on a full-time or hybrid basis, please do not hesitate to contact a member of the team for further advice as you could also be in breach of your duty of care to your employees or failing to comply with health and safety regulations.

Compulsory vaccination for frontline NHS staff in England

There are currently 103,000 frontline NHS staff in England unvaccinated. It has been scientifically established that vaccinated people have a lower risk of catching Covid-19 and are less likely to become seriously ill or need to go to hospital if they do catch the virus.

In an effort to protect both patients and the NHS as a whole, the government have confirmed that it will be a mandatory requirement for staff working on the NHS frontline in England to have their Covid-19 vaccinations. This comes following a consultation which considered whether both Covid-19 and flu vaccinations should be made compulsory. It was confirmed that the flu vaccine would not be mandated. Wales, Scotland and Northern Ireland are not yet introducing such measures.

As with the legislation for healthcare workers in care homes, those with a medical reason not to receive the vaccination will be exempt. Staff who do not have face-to-face contact with patients will  also be exempt.

Although a specific date is yet to be provided for the implementation of this legislation, Sajid Javid stated it would be enforced 12 weeks after parliamentary approval, which is likely to be from April 2022. This will give ample time for NHS staff to become fully vaccinated where they are not already.

The legislation could increase pressure on the NHS, who are already overworked, by forcing those who do not want to be vaccinated to leave. In turn this may reduce the care available to vulnerable patients.

It is important to remember that many staff could still be vaccine-hesitant. Employers should seek to support workers not vaccinated to make a “positive choice”, but should ensure they do not force or shame employees into getting the vaccine.

Comment

Some non-healthcare employers are considering their own vaccine requirements and possibly following suit. This would be a choice for individual employers not to be taken lightly as the ramifications can be complex. Whether you are in the healthcare sector or not, for advice in relation to how this could affect your workplace and what potential alternative options could apply, please do not hesitate to contact a member of the employment team.

Deduction from wages could lead to a breach of National Minimum/Living Wage

Payments made by a worker in connection with their employment should be taken into account when calculating whether they are paid the National Minimum Wage (NMW).

The decision in Augustine v Data Cars Ltd clarified when a payment is in connection with employment.

Facts

Augustine (A) was employed by Data Cars Ltd (DC) as a taxi driver. After a few weeks, A began renting a vehicle from a company associated with DC. He also paid for his uniform.

A’s employment with DC ended and A brought numerous complaints to the Employment Tribunal (ET), including one for breach of the NMW Regulations.

Initially, the ET found that while certain payments could be deducted from his pay, such as fuel and insurance, not all could, so his pay did not fall below the NMW.

One non-deductible payment was car rental costs, as A was not required to rent a vehicle from the company associated with DC, he could have used his own vehicle or rented a cheaper one. The ET also held that the expense of hiring a uniform was not deductible, as he only needed a uniform if he wanted to do an optional level of work.

A appealed to the Employment Appeal Tribunal (EAT), arguing that both the rental payments and hiring of uniform were deductible.

Decision

The EAT upheld A’s appeal, stating that these payments were in connection with A’s employment and were deductible from his pay. Resultingly, A was paid less than the NMW and DC were in breach of the NMW Regulations. Whether or not the payments were a requirement of the employment was irrelevant when DC was calculating A’s pay.

Comment

As an employer, you should ensure that a workers’ wage meets the NMW/NLW requirements after all deductions have been made for payments made in connection with their employment, including those that are not necessarily a requirement, otherwise you could be in breach of the NMW/NLW Regulations and face claims from workers.  The NMW Regulations are viewed by many as a minefield and continue to throw up issues for employers.

If you have any concerns or would like any advice in respect of calculating the National Minimum/Living Wage of your employees and what to include, please do not hesitate to contact a member of the employment team.

If you require any further information on the above developments or any other HR or employment law issue, then please contact one of our employment law experts below.