Hay Fever Havoc

When the idea for this blog post came to me, it struck me how very British my line of thinking was. We complain about the weather for roughly 11.5 months of the year, because of the cold, the wind and the incessant rain. Finally, we are granted a couple of days of sunshine and  we are still not happy with our weather, the Internet being flooded with memes demonstrating how us Brits are totally unequipped and unwilling to suffer any mildly hot weather.

Those who can cope emigrated to the Middle East, Oz and California many years ago.

 

So, putting solidly British suggestions to one side (undergarments in the freezer, feet in cold water and rushing out to buy fans), the warm weather can present problems for businesses, when the pollen is high, hay fever sufferers can be heard for miles.

 

Sniffing, coughing and generally gasping for air in the office, or an increase in sick days, it can be a nightmare for employers. Sick days currently cost businesses roughly £554 per employee per year. For a business with a 250 headcount that is over £135,000 per year.

My desk is currently overflowing with every remedy I can possibly get my hands on, having been hit particularly hard over the last couple of days, I have even found myself praying for rain (very British). At least the rain would give me something to complain about other than my pounding head, streaming eyes, scratchy throat and constant cough and sneezing fits. I know for a fact I am irritating my colleague in the next office beyond belief.

 

So what is an employer to do? Hay fever is unlikely to meet the criteria for being a disability, so there would be no obligation for reasonably adjustments.

 

Is it an easy get out for employees for when the sun comes out, if hay fever becomes an easy way to have a day off? All the usual absence management policies can come into play here, discretionary company sick pay and waiting days are all useful tools. On a human level, given the severity some people suffer with the ailment, some sort of flexibility or sympathy would go a long way for employee relations. There are issues with many of the medications causing drowsiness and general low productivity levels when someone is feeling quite so poorly.

In terms of my presentation for work, my ability to wear make-up has been completely eradicated and I generally look as though I have been crying for a fortnight. Not a great look when clients are likely to visibly recoil at the sight of my streaming eyes and reach for the antibacterial hand wash after a handshake.

I am however still generally capable of wearing high heels, thank goodness (apologies Lawyer Joke! http://gamlinsemploymentlaw.blogspot.co.uk/2016/05/high-heel-gate.html  )

Good intentions not enough in wage calculations

Good intentions not enough in wage calculations 

 

Accurate calculations of the National Minimum Wage continue to cause headaches for employers, with an employment tribunal acknowledging the complexity, saying there is no single key to unlock every case.

Recently, unintentional underpayments in staff pay packets have affected major retailers like John Lewis and Tesco, while others have been waiting for an employment tribunal decision on when sleeping night shift staff are eligible for the National Minimum Wage (NMW). 

For John Lewis, a staff-friendly policy of aggregated wages to provide regular monthly income has resulted in the company having to provision £36m for underpayments over a six-year period, despite most under-payments being technical, rather than actual.   Staff wages were smoothed out over the year so they received the same amount each month, rather than being paid for the exact hours worked.  The problem arose when individuals worked extra hours in a month and the aggregate monthly payment was less than the payment due for the hours worked under the NMW Regulations. 

Argos and Tesco have made similar payroll mistakes.  Tesco is having to compensate 14,000 staff at a cost of £10m for employees who had made salary contributions to pensions, childcare and other schemes which resulted in their pay falling below the National Living Wage level.  Tesco has blamed its payroll software for the error, but for many employers the difficulty lies in correctly interpreting the NMW Regulations.

One such thorny area is payment for employees who sleep overnight in the workplace or are on call.  Previously, such workers were often paid a flat rate for when they were sleeping and their normal hourly rate when they were required to attend to their duties.  This approach was challenged  on the basis that it did not comply with the NMW Regulations,  and three such cases  were recently heard together by the Employment Appeal Tribunal:  Focus Care Agency Ltd v Roberts, Frudd v The Partington Group Ltd and Royal Mencap Society v Tomlinson-Blake.

But for employers hoping for certainty on the issue there has been frustration, with the Tribunal saying that there is no ‘bright line’ and that businesses must conduct a ‘multifactorial evaluation’.  Their findings highlighted four key factors.

1.       The reason for engaging the worker – if an employee is on site to comply with a regulatory or contractual obligation, then the individual is more likely to be classed as working throughout their whole shift, even if they are asleep or with nothing to do.

2.       Restrictions on the worker’s activities – if a worker would be disciplined for failing to remain on stand-by, for example by leaving the premises, then the NMW is more likely to apply than in situations where someone is able to come and go as they please.

3.       The degree of responsibility – if a worker is required to keep a listening ear and respond, such as a care worker, they are more likely to be treated as ‘working’ than someone who is at home on-call.

4.       The immediacy of the requirement to provide services – this includes both the speed and the level of responsibility of a worker.  If they are the one who will decide whether to intervene and then take the action, they are more likely to be categorised as working than someone who is woken and instructed by the responsible member of staff.

“The Tribunal’s decision highlights just how tricky this area of the law can be, but compliance is a serious business,” said Employment Law expert Elissa Thursfield.  “It’s sometimes difficult to understand what’s right and what’s wrong, and borderline cases will be difficult to decide, but if there’s any doubt it pays to investigate further as getting it wrong may mean a company faces claims for back-pay, which can go back six years.  As well as the financial costs, there may be enforcement action by HMRC, and reputational damage.”

 

The National Living Wage is a premium tier of the National Minimum Wage for eligible workers aged over 25.  For those eligible workers aged under 25, there are further categories of age-related rates.  

Year	25 and over	21 to 24	18 to 20	Under 18	Apprentice
April 2017	£7.50	£7.05	£5.60	£4.05	£3.50

 

Although given as hourly rates, the NMW Regulations apply to any eligible worker, whether or not they are paid by the hour and calculations must be made according to the payment basis.  For example, someone paid annually or by piece-work can use a formula to work out the equivalent hourly rate and check if they’re being paid the right amount. 

 

 

Web site content note: 

This is not legal advice; it is intended to provide information of general interest about current legal issues