Employment Law Or Health & Safety Questions

[Anon2734]

Ask me questions relating to employment law or health & safety.
Or share any issues you may be struggling with.
<edited by moderator>

 

[Employment Law Clinic]

Hi,

Your timing couldn't be better. I've been brain-dead (and busy) today, can't think what the National Minimum Wage regulations are that allow what is effectively annual pay (same amount each pay reference period - week or month) for varied working patterns (some periods a few hours work, others none, others a lot); the arrangement would mean that some working periods would result in the pay in the pay reference period not being the NMW, but over the year this would even out.

What are the regulations that allow this, that allow the pay to fall below the NMW in some pay reference periods?


Thanks,


Karl Limpert

 

[Anon2734]

You cannot ever go below minimum wage.
Your pay structure would need to change.
Otherwise it becomes open to exploitation.
The care sector is a prime example.
We dealt with many issues where staff received sleepover allowance.
This meant that through relating pay/hours the companies were below the required rate.
It would be valuable to consult a payroll expert or accountant to restructure your payroll.
HMRC may also assist.
You will understand the structure you are explaining could be utilised illegitimately to accommodate cash flow problems.

 

[Employment Law Clinic]

You cannot ever go below minimum wage.
Your pay structure would need to change.
Otherwise it becomes open to exploitation.
The care sector is a prime example.
We dealt with many issues where staff received sleepover allowance.
This meant that through relating pay/hours the companies were below the required rate.
It would be valuable to consult a payroll expert or accountant to restructure your payroll.
HMRC may also assist.
You will understand the structure you are explaining could be utilised illegitimately to accommodate cash flow problems.

Thanks,

I mean something like envisaged here: https://www.gov.uk/minimum-wage-different-types-work/paid-an-annual-salary

So one month, no work is done, but the employee is paid, another month, say the worker does 15 hours, but due to annualised pay only gets paid for an annual average of 8 hours.

Nothing to do with sleepovers, which have all sorts of test to consider. Not relevant here though.

I'm speculating that there's something where the Pay Reference Period rules would allow for this, where the normal test of NMW to PRP wouldn't apply, I just can't think what they are.


Karl Limpert

 

[Anon2734]

Hello
So a annualized salary is paid as such ,
You must meet the hourly rates regardless.
There is no exception to the rules.
If the hours fluctuate or change you must still meet the minimum wage.
The website attached gives you a calculator for this.

 

[Employment Law Clinic]

If the hours fluctuate or change you must still meet the minimum wage.

I get that the minimum wage has to be met regardless, but working on an annual salary, where the employee could work no hours one month but still get paid their monthly salary, what is the regulation that allows the preceding month for the employee to work, for example 16 hours, but only get paid 8 hours at NMW rates?

i.e. Employee works 16 hours in June, but gets paid in the June pay reference period for only 8 hours; employee works no hours in July, but still gets paid in the pay reference period for 8 hours - a two month example of a twelve month year.

The NMW is ultimately paid, but what is the regulation that allows the employer not to pay for all the hours worked in the June pay reference period? How does the employer not fall foul of the NMW regulations in June, before the July pay is made?


Karl Limpert

 

[Anon2734]

Ok I understand.
Normally most companies would adjust payments according to hours worked.
As I said earlier it could be open to exploitation by unscrupulous employers.
Its simply an annual salary divided into months.
Or monthly payroll.
I am unclear on what you are seeking?.
The normal course of action would be for a payroll provider to adjust payments for hours worked accordingly.
Of course you could have negotiated terms in a contract on how payments are made.
However you would need to clearly demonstrate you meet the required minimum criteria.
Fines and prosecution for low pay are severe.
I recommend you visit an accountant or payroll provider if you are structuring payments.

 

[Employment Law Clinic]

Ok I understand.

I am unclear on what you are seeking?.

I would imagine it would be simple (if I could identify the regulations), but I guess not. I simply want to know/identify the regulations that would permit this.


Employee works sometimes, agreed hours over the year, paid for the same, which would equate to NMW over the year. But the employee gets paid the same monthly pay – the pay is evened out over every month, regardless of hours worked.


So in one month the employee works 16 hours, but is only paid for 8 hours. This month’s pay falls below the NMW for the Pay Reference Period – although it will be corrected in the subsequent months.

All I’m trying to identify is the regulations that would permit this - to allow the employer to pay on this structure, an average monthly pay, where the NMW is ultimately met, but in any given month the NMW may not (because in other months it will exceed) be paid. (No exploitation. Is this not possible?)


Karl Limpert

 

[Employment Law Clinic]

Using the example in that link above, say Jeba worked 340 hours in month one. Jeba wouldn't be paid the NMW - although later, when she works fewer hours, it will even out, and overall she'll be paid the appropriate amount.

But what regulation allows the employer not to pay Jeba the NMW for month one in that pay reference period?

That's the only question I'm raising - how can the employer not pay Jeba the NMW for month one within that specific pay reference period?


Karl Limpert

 

[Anon2734]

As I said you can agree a pay stucture in a contract.
However ensure you meet the nmw rates.
Be clear in your terms to avoid investigation.
What im saying about exploitation is a employer could pay somebody £3 an hour for example.
On investigation he makes the claom its because hes going to pay them next month for not working.
How does the low pay team know thats a statement of fact.

 

[Anon2734]

The reason is clear a pre determined contract laying out pay structure.
This has to be agreed and transparent under investigation.
As I said also ,it is far easier and more common to adjust pay across the year.

 

[Newchodge]

It's the 2015 Minimum wage regulations. Part 5, Chapter 2.

Welcome. How long have you been a professional for the UK'S top service provider?

 

[Anon2734]

A number of years now <edited by moderator>

Why do you ask?

 

[Employment Law Clinic]

It's the 2015 Minimum wage regulations. Part 5, Chapter 2.

Welcome. How long have you been a professional for the UK'S top service provider?

I believe you settled my restless mind very quickly & easily, Cyndy, thank you. I haven't read the whole thing yet, but that clearly deals with the issue I (among other) was struggling to answer in my own mind.


Karl Limpert

 

[Newchodge]

A number of years now
Why do you ask?

Just wondered.

 

[Anon2734]

Can I ask why you want the information?
Are you currently organising contract terms?

 

[Newchodge]

I believe you settled my restless mind very quickly & easily, Cyndy, thank you. I haven't read the whole thing yet, but that clearly deals with the issue I (among other) was struggling to answer in my own mind.


Karl Limpert

It is a bit counter-intuitive, but it does cover what happens if someone leaves part way through the year, which is when there may be problems.

 

[Newchodge]

Can I ask why you want the information?
Are you currently organising contract terms?

I don't understand the question. I am currently holding discussions on UKBF.

 

[Anon2734]

I dont feel it would cause a problem somebody leaving part way through the year.
Again its a simple payroll and accounting calculation.
As long as the nmw rate has been met ,you are covered.
I would advise you construct payroll differently in this case.
It would make more sense to pay on hours worked during a pay period.
It would simplify your process and be equivalent to nmw and transparent.
Are you currently recruiting ?

 

[Anon2734]

Sorry Cindy my responses are to the original post.

 

[Newchodge]

Karl is an expert on employment law. On another thread I advised a forum member that they could pay annualised salary with varying hours in different months and quoted the guidance that Karl mentioned.

Karl asked you for the regulations that may allow this to happen as you are a professional and he had not got the time to look for the regs. You denied, and apparently continue to deny that this can be done. I have supplied the reference for the law on this.

Doesn't Peninsula expect its advisors to know the law, or at least be able to find it when given the details of it?

 

[Anon2734]

Excuse me throughout my post I have said it can be done through contractual agreement.
Karl was also unclear in what he was asking for and why.
As we are the top uk employment law company I would think I have the correct knowledge.
I also have advised scenarios that could occur in implimenting such a structure.
It could be exploited and arouse suspicion of wrong doing.
In addition create a complex payroll structure which could be simplified.
I dont believe any part of my advice is not factual in fact I am certain.
Im also not getting into a protracted argument with somebody clearly trying to discredit others for their own gain.
I will end the conversation there.
My question is for people who may have an issue ,not experts who cannot answer there own questions.

 

[Newchodge]

I suggest that you have a look at other threads in the forums, and try to understand how UKBF works.

 

[Anon2734]

Im sure I also have the accumen to see how a thread works.
Perhaps you should view our knowledge centre on our website its free to view and obtain answers.
I as I said will end the conversation there im here to help business people with issues as I do full time day in day out.
Please dont make silly statements when reading my post its clear I havent denied possibility of annual pay structure in a contract.
I have however given more practical solutions and pointed out pitfalls.
Which coincidentally I discuss daily with business owners along with many other issues.

 

[Newchodge]

Yes, dear.

 

[Anon2734]

A final note im also extremely successful now if any business owners require help please ask.

 

[Newchodge]

[Sigh]

 

[The Byre]

OK, I want to make what I believe is an important point here -

You are setting yourself up here as an expert in employment law. That implies very clearly that you are a lawyer, i.e. a solicitor or barrister and, moreover, a specialist in employment law.

So far, so good. But here's my personal gripe - the law of the land here is only written in English. Every bit of law, tort, cases of precedent, judgements, bills, you name it and it is written in English (with bits of Latin and derivatives of other languages, such as German and French) and the entire structure of our legal system relies on the clear and correct use of the English language.

In the same way that an accountant has to be numerate and a welder has to be able to weld, a lawyer has to have a full and impeccable command of the English language. It is the English language that places the tools of the law into the hands of any lawyer working in the United Kingdom.

I do not expect a welder to have a perfect command of English, any more than I expect a lawyer to be able to make a perfect bead with a MIG-welding machine. Language is to the lawyer, what a welding machine is to a welder, wood is to a carpenter and numbers to an accountant.

Contracts are written in English and ambiguous or sloppy drafting is truly the bane of those who have to unravel many a sticky situation. Poor drafting comes from poor language and poor language comes from poor thought.

It is one of the many tasks of an employment lawyer, to put the often muddled and unclear desires of employer and employee into clear and understandable language and at the same time, ensure that all parties comply with existing legislation.

He or she does this in the United Kingdom by using the English language.

Yet hardly a post of yours is without a grammatical mistake - for example, using they're, their and there correctly. A lawyer who cannot use language correctly, is like an accountant who cannot use numbers.

 

[billmccallum1957]

Can I ask the OP a question?

How does being a "Business Sales Executive" qualify you to give Employment Law or H&S advice?

 

[Employment Law Clinic]

Please dont make silly statements when reading my post its clear I havent denied possibility of annual pay structure in a contract.

I have to admit, if I hadn’t pushed the issue I would have taken

You cannot ever go below minimum wage.

Your pay structure would need to change.

as meaning the “pay structure would need to change” – a suggestion that it couldn’t be done as proposed.

Karl was also unclear in what he was asking for and why.

Apologies for being unclear in what I was asking for, and why. What I meant by

I've been brain-dead (and busy) today, can't think what the National Minimum Wage regulations are that allow what is effectively annual pay (same amount each pay reference period - week or month) for varied working patterns (some periods a few hours work, others none, others a lot); the arrangement would mean that some working periods would result in the pay in the pay reference period not being the NMW, but over the year this would even out.


What are the regulations that allow this, that allow the pay to fall below the NMW in some pay reference periods?

is that in what was a demanding day I couldn’t think what the Regulations were, and was taking you up on the invitation to ask any question, to help identify what turns out to be regulation 17 onwards of the NMW Regs 2015 – what I would think was similar to the sort of thing a tribunal might do: they may ask for help pointing to an infrequently used law, or even just the convenience of a page/paragraph number in Butterworths.

The care sector is a prime example.

We dealt with many issues where staff received sleepover allowance.

This meant that through relating pay/hours the companies were below the required rate.

This was an interesting point you raised, something I didn’t get the chance to get distracted by last night. But as you say, the care sector is a prime example, among the most recent cases for the latest case law for sleeping staff. And as you yourself say, in Focus Care Agency v Roberts the “UK’S (sic) top service provider” advised Focus, where staff received a sleepover allowance, and this meant their client was paying below the minimum (let alone contractual) wage. Perhaps a good example why the "top service provider" isn't always the best choice for employers.


Karl Limpert

 

[Anon2734]

Questions answered in perfect legible english clear attempt to discredit me and my company with the slip in of a competitors name..
When I say competitor???
<removed>
I think along with your ilegible posts you need to look at facts.
Highlighting again...
My comments were a contractual agreement for annual salary is fine..with a payroll over 12 months splitting the salary.
This has been pre determined between employee and employer.
In the case where the hours worked in a month fall below minimum wage this could cause an issue if reported or investigated.
This could also become a method of exploitation by people trying to pay low wages.
They could turn around and pay low excusing it on paying the employee for no hours work the next month.
It would be more transparent to adjust payroll in line with hours worked per month.
This would also be simpler to impliment and is used by 99% of businesses as a way of dividing a annual salary.
The reason I mention sleepover allowance is it reflects advice we have had to give businesses who employed staff on lower than nmw rates while doing sleepovers in the care sector.
It represents a very similar scenario of dividing salary across hours that left a shortfall below nmw rate.
Read your comments back and tell me if you make sense?.
I hope by me simplifying my text you now can see no ill advice and also that by presenting facts about my company people will not view either in a bad light.
Which was clearly your intention so transparent in fact you slipped in another companies name.
The first rule of legitimate business is not to attack competitors.
I have reported your post and hope we dont speak again.

 

[Anon2734]

Yes I work within the sales division as such the first port of call for many people with issues.
I undertake full training and have a huge legal team I work alongside.
<removed>
Not only are we the largest ,but widely considered and acknowledged within and outside the industry the best.
I also forgot a comma..
????
Ill bid you a good day.
Enjoy speaking with site moderators in regard to your scathing attacks.
Its also very clear my statements and advice are clear fact.
Neither do I have the time or inclination for protracted arguments on a website it would display a lack of professionalism.
However please dont insult me ,or a company I adore and know they are every bit as honest and dedicated as their fine standing and reputation.
As is every member of its workforce.

 

[Employment Law Clinic]

In the same way that an accountant has to be numerate and a welder has to be able to weld, a lawyer has to have a full and impeccable command of the English language. It is the English language that places the tools of the law into the hands of any lawyer working in the United Kingdom.

...and a grave digger knows when the hole they’ve dug is deep enough.

My comments were a contractual agreement for annual salary is fine..with a payroll over 12 months splitting the salary.

This has been pre determined between employee and employer.

In the case where the hours worked in a month fall below minimum wage this could cause an issue if reported or investigated.

This could also become a method of exploitation by people trying to pay low wages.

They could turn around and pay low excusing it on paying the employee for no hours work the next month.

It would be more transparent to adjust payroll in line with hours worked per month.

This would also be simpler to impliment and is used by 99% of businesses as a way of dividing a annual salary.

I’m not sure why it would be difficult for an employer to pay the same amount each month, or why a perfectly legal arrangement would be investigated. I guess the long week continues to stifle my thought process. Might have to take a day off tomorrow.

Im sure I also have the accumen to see how a thread works.

And that’s why the regional forums are so popular – this is a regional-relevant thread, I guess.

I have reported your post and hope we dont speak again.

I’m sure whomever this point is addressed to will know too.



Karl Limpert

 

[Anon2734]

The reason it may be investigated is prior you asked ,"if the pay in a month does not equal minimum wage rates for that pay period,owing to hours worked"
For somebody looking at that pay period that could cause alarm and result in investigation.
The reason it may arouse suspicion is some parties may, as a attempt to be dishonest.
Pay below minimum wage and upon questioning utilise the idea they were going to pay the employer the rest next month for no hours work.
Hence bringing pay upto minimum wage level.
I think thats totally legible.
Look below each post theres a report button.
I was referring to defamotary statements towards me and my company.
I think you know clearly what im stating is correct.
The only reason I have continued my conversation today is I am not happy with a clear attempt to discredit us.
I have reported it and I was referring to you.
Now if you dont mind I have work to do.

 

[Employment Law Clinic]

Not only are we the largest ,but widely considered and acknowledged within and outside the industry the best.

[my emphasis]

I didn’t know this. I’ve never heard anyone within or outside the industry to suggest this either. I must mix in the wrong circles.

I must I admit, I don’t recognise the penultimate point in the quote – “fine standing”. But I need to get out more.


Karl Limpert

 

[Anon2734]

In answer to your statements as with insurance legal protection is utilised as and when needed.
We have over 35000 clients with a rate of 98% positive feedback.
As for contractual terms a person buys a car for example or house.
Over a period of years.
They use the car for a while or house.
In our case work closely with the company to ensure the correct contracts policies and procedures are in place in the business.
A service coincidentally which would cost 3 times the amount upfront with a solicitor.
As it does across a five year term.
They a few months in decide oh I cant afford my car , my house etc.
Does the company say oh its ok you can have it?.
No they dont.
We also have a excellent credit control department who frequently work with business owners in difficulty.
They work fairly and commercially.
Can I ask why its not necessary to have a legally compliant structure and policies and procedures within a business?
Not necessary?
This is why we also spend a lot of time working with new clients hit by tribunal and health and safety claims.
For which by the way we also have a huge success rate.
A person with so little knowledge of myself; our company or the industry by your own admission really shouldnt pass comments amounting to idiocy.
Our clients access fantastic 24 hour fully indemnified legal advice ,they are fully insured against tribunal ,they are constantly updated on legislation.
They also have all relevant documents contracts and policies updated to ensure legal compliance.
They access management systems and training.
I can also say are always happy to reccomend us 98% of 35000 cant be wrong.
Is anything listed not necessary?
I also missed audits ,risk assessments ,fire risk, accreditations to specialist industry bodies by sector.
Such as chas ,refcom ,safe contractor in construction ,staying in that field cdm services
Hr face 2 face involvement in individual cases.
And much more.
Anything unnecessary yet Karl ?
We also have industry specific legal experts in medicine , the care sector ,education and support indeed many of the uks top schools ,universaties and colleges.
Both private and academic.
Karl know your facts and please refrain from any posts.
You came with a question I answered with legible fact.
Lets leave things there.

 

[Employment Law Clinic]

I have reported it and I was referring to you.

Hi,


I don't want to be all Warren Beatty-vain here, but I think you're talking about me – although, despite your confidence, I don’t think you’ve quite displayed the acumen on how a thread works, as you didn't identify who "you" is.

The reason it may be investigated is prior you asked ,"if the pay in a month does not equal minimum wage rates for that pay period,owing to hours worked"

For somebody looking at that pay period that could cause alarm and result in investigation.

The reason it may arouse suspicion is some parties may, as a attempt to be dishonest.

Pay below minimum wage and upon questioning utilise the idea they were going to pay the employer the rest next month for no hours work.

Hence bringing pay upto minimum wage level.

I think thats totally legible.

Are you suggesting that an employer couldn’t operate a payroll in total compliance with the law without raising alarm? And/or that an employer would be more sensible paying a different amount each month, with inconvenience for the employer, employee, and the payroll staff?

I think thats totally legible.

Look below each post theres a report button.

I was referring to defamotary statements towards me and my company.

I think you know clearly what im stating is correct.

The only reason I have continued my conversation today is I am not happy with a clear attempt to discredit us.

I have reported it and I was referring to you.

Now if you dont mind I have work to do.

I didn’t, and still don’t, think your point is totally legible, hence why I asked more than once. But I was only taking your invitation to ask a question, no intention to discredit anyone, only acknowledge my only limitations. (For reference, I’ve sought the views of other employment lawyers before on here. I know my clients (and peers) think I’m good, but sometimes I do have cause to check a detail or opinion in law, I can’t always be confident that I’ve always got it right… even though I do manage to.)

The only reason I have continued my conversation today is I am not happy with a clear attempt to discredit us.

I have reported it and I was referring to you.

Now if you dont mind I have work to do.

Quite right too to report such behaviour. The moderators are good here, I never did see the offending post (despite perhaps writing it). And I don’t mind you excusing yourself at any time – we’re not on a live chat, so you’re free to return at your convenience.


Karl Limpert

 

[Employment Law Clinic]

As for contractual terms a person buys a car for example or house.

Over a period of years.

They use the car for a while or house.

I don’t think we’re comparing apples with apples here, not even apples with pears.


If I rent a house, and decide after a few months I don’t need it anymore, I can give up the tenancy. But if a self-employed employer closes their business, they can’t give up their liability to your company.

They work fairly and commercially.

Can I ask why its not necessary to have a legally compliant structure and policies and procedures within a business?

Not necessary?

This is why we also spend a lot of time working with new clients hit by tribunal and health and safety claims.

For which by the way we also have a huge success rate.

A person with so little knowledge of myself; our company or the industry by your own admission really shouldnt pass comments amounting to idiocy.

Our clients access fantastic 24 hour fully indemnified legal advice ,they are fully insured against tribunal ,they are constantly updated on legislation.

They also have all relevant documents contracts and policies updated to ensure legal compliance.

I have knowledge of the industry, but didn’t realise you charge a third of what a solicitor would charge, and spread that cost over five years. You’re very competitive at those rates. (Or at least you would be, if that was true.)


As for the rest of your spiel, I invite you to comment on a case I handled: http://employmentlawclinic.com/empl...nts-from-our-cases/prosser-v-saunders-bakery/, particularly the allegation that…

“Before instructing Employment Law Clinic, the Respondents had received advice that they should attempt to settle the claim for £14,000, as the case was considered likely to be successful in all claims.”


Now, the article I link to doesn’t identify the previous advisors. As I apparently don’t have knowledge of the industry, can I ask, do you think I should qualify the comments by posting the earlier advice (which was only given after the client was assured the company could & would defend all claims, and signed up for a lengthy contract that wasn’t cheaper than hiring a solicitor, so I guess it rules some firms out)?



Karl Limpert

 

[Anon2734]

Karl you really do not make sense ,nobody gives up a purchase without costs.
Its business and every business wants paying for giving a service.
We are actually very fair but commercial with debtors.
You cannot give a service away.
Just for doing our original drawing up of legal documents a solicitor would charge 3 times our contractual costs for five years is fact.
I havent got knowledge of the industry was
your statement.
I should get out more.
I am now posted a link to a tribunal with nothing to do with me or my company.
In my position coincidentally I am very often the first person a person would come to with a problem.
I am on a daily basis advising companies and I have signed legal forms for this.
I also live eat and breathe this I know my job.

 

[Anon2734]

You actually by the way should respect client confidentiality and not publish any advice.
You could end up with a law suit for disclosing information irregularly.
Just to aid you.
As you can for defamatory or slanderous statements.