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Legal update for voluntary organisations
  • Employment & volunteering
  • Equality
  • Legal structures & charitable status
  • Risk, funding, finance & property
  • Activities & services (everything else)
  • Archived items

  • ON THIS PAGE
    Items are in order of chapters in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3). Dates in red below have been updated in the past three months.


  • Employment resources (updated 24/4/16)
  • "Weekly pay" for redundancy pay & other awards for 2016-17 (updated 24/4/16)

  • VSLH3 Ch.25
    Employees & other workers

  • Zero-hours contracts (updated 16/5/14)
  • Internships: Issues & resources (updated 13/11/13)
  • Work experience: Issues & resources (updated 13/11/13)
  • Supreme Court ruling on compulsory work schemes for jobseekers (added 12/11/13)
  • Challenging compulsory work schemes (added 12/11/13)
  • Archived items for this chapter

  • VSLH3 Ch.26
    Rights, duties & the contract of employment

  • Archived items for this chapter

  • VSLH3 Ch.27
    Model contract of employment

  • Archived items for this chapter

  • VSLH3 Ch.29
    Taking on new employees

  • Checking right to work in the UK (updated 17/5/14)
  • Right to work in the UK: Points based system (updated 28/3/14)
  • Failure to shortlist applicants from outside the EEA (updated 30/3/13)
  • Right to work in the UK: EEA nationals (updated 20/1/14)
  • TUPE resources (updated 20/1/14)
  • Changes to TUPE regulations (updated 17/5/14)
  • Archived items for this chapter

  • VSLH3 Ch.30
    Pay & pensions

  • NJC pay scales for 2016-17 & 2017-18 (updated 13/6/16)
  • National minimum wage and national living wage (updated 15/5/16)
  • The (actual) living wage (updated 24/4/16)
  • Minimum wage, internships & work experience (updated 13/11/13)
  • Minimum wage & on-call/sleep-in time (updated 19/10/14)
  • Earnings from permitted work (updated 1/10/15)
  • Scottish rate of income tax (updated 24/4/16)
  • Tax allowances & national insurance thresholds for 2016-17 (updated 24/4/16)
  • National insurance employment allowance (updated 24/4/16)
  • Tax and NI on expenses and benefits in kind (updated 30/4/16)
  • Tax on employer-provided accommodation (added 30/4/16)
  • Tax-free childcare (updated 30/4/16)
  • State pensions (updated 29/3/14)
  • Pension auto-enrolment (updated 15/5/16)
  • Pension liability on incorporation, merger or winding up (updated 2/4/10)
  • Archived items for this chapter

  • VSLH3 Ch.31
    Working time, time off & leave

  • Working Time Directive (Limitation) Bill (added 4/10/15)
  • European Commission review of the working time directive (added 4/10/15)
  • Travel to work time for mobile workers (added 3/10/15)
  • Right to request flexible working for all employees (updated 4/10/15)
  • Unused flexitime (or TOIL) on termination of employment (added 4/10/15)
  • What needs to be included in holiday pay? (added 23/7/15)
  • Statutory sick pay (updated 15/5/16)
  • Rights of military reservists and their employers (updated 23/7/15)
  • Right to request time off for training (updated 23/7/15)
  • Managing bereavement in the workplace (added 4/10/15)
  • Archived items for this chapter

  • VSLH3 Ch.32
    Rights of parents and carers

  • Tax-free childcare (updated 30/4/16)
  • Statutory maternity, paternity & adoption leave and pay (updated 15/5/16)
  • European draft directive on maternity rights (added 28/1/15)
  • Shared parental leave & pay (updated 5/10/15)
  • (Grand)parental leave and pay (added 5/10/15)
  • Redundancy during pregnancy or maternity, paternity or adoption leave [opens in new window] (updated 3/8/13)
  • Time off for fathers/partners/adopters for antenatal/pre-adoption appointments (updated 19/10/14)
  • Extension of unpaid parental leave (updated 22/4/15)
  • Archived items for this chapter

  • VSLH3 Ch.33
    Disciplinary matters, grievances & whistleblowing

  • Changes to whistleblowing law (updated 28/8/13)
  • Archived items for this chapter

  • VSLH3 Ch.34
    Termination of employment

  • Increase in qualifying period for unfair dismissal (updated 11/3/12)
  • Dismissal on grounds of political opinions or affiliation (updated 17/6/13)
  • Dismissal on grounds of pregnancy [opens in new window] (added 2/12/12)
  • Unfair dismissal awards (updated 24/4/16)
  • Archived items for this chapter

  • VSLH3 Ch.35
    Redundancy

  • Redundancy during pregnancy or maternity, paternity or adoption leave [opens in new window] (updated 3/8/13)
  • Changes to collective redundancy consultation rules (updated 14/4/13)
  • Statutory redundancy pay (updated 15/5/16)
  • Archived items for this chapter

  • VSLH3 Ch.36
    Employer-employee relations

  • Archived items for this chapter

  • VSLH3 Ch.37
    Employment claims and settlement

  • Early conciliation in employment disputes (updated 17/5/14)
  • Mediation in employment disputes (updated 1/2/14)
  • Settlement agreements & confidential negotiations before termination of employment (updated 16/6/13)
  • Abolition of statutory discrimination questionnaire procedure: Employment (added 1/4/14)
  • Changes to employment tribunal rules & procedures (updated 30/3/14)
  • Changes to employment appeal tribunal rules (added 9/9/13)
  • Constitution of employment tribunals (updated 24/6/13)
  • Employment tribunal fees (updated 17/5/14)
  • Archived items for this chapter

  • VSLH3 Ch.38
    Self employed & other contractors

  • Archived items for this chapter

  • VSLH3 Ch.39
    Volunteers

  • Volunteering resources (updated 2/2/15)
  • Rights and responsibilities of volunteers and volunteer-involving organisations (updated 2/2/15)
  • Volunteers from overseas (added 2/2/15)
  • Guidance on safeguarding for volunteer involving organisations (added 2/2/15)
  • Volunteers & state benefits: Resources (updated 2/2/15)
  • Universal credit rules on volunteering (updated 14/2/15)
  • Archived items for this chapter
  • LEGAL UPDATE
    FOR VOLUNTARY ORGANISATIONS:
    EMPLOYMENT & VOLUNTEERING

    For information about the legal update website for voluntary organisations, disclaimers and other sources of updates, see the legal update website home page. The five pages that make up the legal update website are Employment & volunteering, Equality & human rights, Legal structures & charitable status, Risk, funding, finance & property, and Activities & services (everything else: health & safety, safeguarding, data protection, intellectual property, marketing, and more).

    Items about changes which took place more than a year ago are archived at www.sandy-a.co.uk/vslh.htm.

    To be notified when the legal update website is updated, click to send an email, asking to receive update notifications. Please give your name, organisation, email and postal addresses and telephone number. Your postal address and phone number are used to contact you if emails bounce. To avoid spamming, an email address is not given on screen.
    If you can't see the word 'Legalupdate' after 'click' in the first line, or have trouble sending an email by clicking on it, the address is legalupdate at sandy-a.co.uk, with the spaces and 'at' replaced by the @ symbol.


    EMPLOYMENT RESOURCES

    Updated 24/4/16. This information updates various sections in The Russell-Cooke Voluntary Sector Legal Handbook.
    Listed below are some of the main sources of free information about employment issues for voluntary sector employers and employees.

    • The easiest starting point is often the "Employing people" section on the Gov.uk website, at www.gov.uk/browse/employing-people. This is for both employers and employees, with headings for contracts of employment and working hours; dismissing staff and redundancies; health and safety at work; payroll; pensions for your staff; recruiting and hiring; statutory leave and time off; and trade unions and workers rights. Each section is divided into further sections with basic information and links for more detailed information.

    • The website of Acas, the Advisory, Conciliation and Arbitration Service, at www.acas.org.uk includes a wide range of information for employers and employees. This includes leaflets and more detailed guidance; statutory codes of practice; free templates for letters, forms and checklists; an online automated helpline at www.acas.org.uk/helplineonline with answers to hundreds of the most frequently asked workplace questions; and a free, confidential telephone helpline for employers and employees at 0300 123 1100 (Mon-Fri 8am-8pm, Sat 9am-1pm).

    • The government's pay and work rights confidential helpline, which gave employers, workers and union reps basic information and advice about the national minimum wage, agricultural minimum wage, working time (in particular the 48-hour limit and night work), employment agency standards and gangmaster licensing standards, was transferred on 1 April 2015 to the ACAS helpline at 0300 123 1100. The intention is to create a one-stop shop on all employment rights and workplace issues for employers and employees.

    • The TUC (Trades Unions Congress) has resources on employment rights at tinyurl.com/hyjddr3 and elsewhere on its website. These are intended primarily for employees and trade union representatives, but are also very useful for employers.

      The TUC website includes an employment rights online resource guide in 17 languages, to help inform people of their working rights in the UK. The guide, produced by TUC International, can be accessed at www.tuc.org.uk/workingintheuk and can be translated online into Bulgarian, English, French, Hungarian, Italian, Latvian, Lithuanian, Polish, Portuguese, Romanian, Russian, Slovak and Spanish, or downloaded as a PDF in Bangla, Gujarati, Punjabi and Urdu.

    • PEACe, the Personnel, Employment Advice and Conciliation service based at London Voluntary Service Council, closed on 31 March 2016 but an announcement on its website says LVSC will maintain the document bank containing template HR policies, model procedures and guidance documents produced in partnership with Russell-Cooke Solicitors, and the model staff handbook and managers toolkit. Details are at www.lvsc.org.uk/peace.
    Acas imitators
    Acas has warned about a scam where companies contact employers saying they are part of and/or acting on behalf of Acas. The company typically offers initial advice which they don't charge for, but then asks people to sign up to a long term, often expensive contract for employment and/or health and safety advice. Acas emphasises that in general, the only services it charges for are in relation to larger companies, for mediation, specific training or one-off projects tailored to their needs.

    Acas information about this scam and what employers who have been targeted should do is at www.acas.org.uk/index.aspx?articleid=3681.

    For new employers
    Acas has a series of step by step guides intended specifically for employers thinking about taking on their first member of staff, or small and medium employers "who may have had a bumpy experience managing staff for the first time". The seven guides are at www.acas.org.uk/stepbystep and cover recruiting an employee; settling in a new employee; the new employee's contract; managing a complaint at work; managing staff absence; how to get the best out of your staff; and handling small-scale redundancies.

    Gov.uk has a quick checklist of six things employers must do when employing for the first time, at www.gov.uk/employing-staff.

    A template for a written statement of employment particulars — the basic information which must be given to all employees who will be employed for more than one month — is on the Department for Business, Innovation and Skills website via tinyurl.com/lg7hkvs. It can be filled in online.

    LawWorks
    LawWorks (www.lawworks.org.uk) is a charity which offers free legal advice and guidance to small charities, not-for-profit, voluntary and community organisations and social enterprises in England and Wales. This includes free legal advice on a wide range of legal issues; an online service providing initial advice in response to general legal queries; a small number of legal advice clinics; and factsheets and videos on a range of topics. It also provides a mediation service.

    Factsheets on employment, equality and safeguarding, as well as a series of factsheets specifically for new employers, can be accessed via tinyurl.com/m96wyld.

    Employees experiencing domestic violence
    The Equality and Human Rights Commission in Wales, with support from the Chartered Institute of Personnel and Development (CIPD), has guidance to help employers develop a domestic abuse policy, facilitate conversations about domestic abuse and put in place low cost, common sense practical support for employees. The guidance can be accessed via tinyurl.com/zkcd62s.

    The Department of Health has had since June 2013 a public health responsibility pledge for organisations wanting to help staff facing domestic violence. Working closely with relevant organisations, the Department of Health has also developed a leaflet for employees ensuring they understand their rights and responsibilities within the organisation, and another for employers, giving guidance on how to support those who are in immediate need of help.

    The public health responsibility deal states, "We will treat people within our organisation with respect and dignity. We will do everything we can to prevent stalking, violence or abuse either in the workplace or that has an effect on people in the workplace, whether from a colleague, family member or anyone else. This will include having guidance in place which is suitable to the size of our organisation. The guidance will ensure than an appropriate, safe and sensitive response can be implemented and our employees supported when they raise such an issue."

    Information about the pledge and links to the are on the Department of Health website via tinyurl.com/p7hu5gk.

    Retention of HR records
    The CIPD (Chartered Institute of Personnel and Development) factsheet on retention of HR records, setting out requirements under data protection and other legislation (health and safety, anti-terrorism, electronic communications and more), was updated most recently in July 2015. It sets out what HR records are, the legal position, statutory retention periods where these exist, and recommended retention periods where there is no statutory period. The factsheet is at tinyurl.com/lyep6en.

    Go back to contents


    "WEEKLY PAY" FOR REDUNDANCY PAY AND OTHER AWARDS FOR 2016-17

    Updated 24/4/16. This information updates ss.35.7.1 and various other sections in The Russell-Cooke Voluntary Sector Legal Handbook.
    England, Wales and Scotland. Annual changes to the statutory maximum "weekly pay" for calculating certain statutory entitlements, including statutory redundancy pay and basic compensation for unfair dismissal, take effect on 6 April each year in England, Wales and Scotland. Prior to 2014, they took effect on 1 February.

    The maximum weekly pay for calculating statutory redundancy pay for redundancies taking effect on or after
    6 April 2016, and other payments based on this figure, is £479 (increased from £475).

    From 6 April 2016 the limit on guarantee payments when an employee is not provided with work remains £26 per day (no change from previous year), and the minimum compensation for a worker excluded or expelled from a trade union is £8,939 (increased from £8,868).

    For unfair dismissal awards, see Unfair dismissal awards, below.

    These and related changes are based on the September retail prices index (RPI).

    The Employment Rights (Increase of Limits) Order 2016, covering events taking place on or after 6 April 2016 in England, Wales and Scotland, is at www.legislation.gov.uk/uksi/2016/288/made.

    The Employment Rights (Increase of Limits) Order 2015, covering events taking place between 6 April 2015 and 5 April 2016, is at www.legislation.gov.uk/uksi/2015/226/made.

    Northern Ireland. The formula for calculating changes in the amounts is different in Northern Ireland, resulting in increases there being larger than in the rest of the UK, and coming into effect on a different date. From
    14 February 2016 "weekly pay" is £500 (increased from £490). For unfair dismissal awards, see Unfair dismissal awards, below.

    These and other awards are in the Employment Rights (Increase of Limits) Order (Northern Ireland) 2016, at www.legislation.gov.uk/nisr/2016/37/made.

    Details for events taking place between 22 March 2015 and 13 February 2016 are in the Employment Rights (Increase of Limits) Order (Northern Ireland) 2015, at www.legislation.gov.uk/nisr/2015/169/made.

    Go back to contents



    EMPLOYMENT STATUS


    ZERO-HOURS CONTRACTS

    Updated 16/5/14. This information updates ss.25.2.3 & 25.3.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As with "intern" and "volunteer", there is no legal definition of a zero-hours contract — leading to much confusion for workers, employers, the media and everyone else. The problem is that there are many different types of arrangement, and the only thing they may have in common is that the individual has no contractually guaranteed hours. But in the media and therefore in the public mind, all zero-hours contracts are usually lumped together.

    Jobseeker's allowance and zero-hours contracts
    Sheila Gilmore, MP for Edinburgh East, reported on her website on 18 March 2014 that Esther McVey, minister for employment at the Department for Work and Pensions, had stated in a letter on 1 March that DWP does not currently require jobseeker's allowance claimants to apply for zero-hours contracts. This is because short periods of work could end a JSA claim, requiring new claims to be made in periods where earnings fall. JSA claimants who do not apply for zero-hours contracts, or turn them down, do not face sanctions from DWP.

    However, McVey said in her letter that this would change for claimants who receive universal credit, because this benefit is payable whether the claimant is working or not, and is designed to be responsive to variations in earnings. Universal credit claimants can be required to apply for zero-hours work, and can be sanctioned if they refuse to do so or turn down such work without good reason.

    Gilmore's article on her website expresses concern that even if universal credit will not involve claimants coming off benefit and having to re-apply, claimants will still have problems if zero-hours work makes it difficult for them to attend training courses or apply for other work.

    The fact that universal credit claimants could be required to apply for zero-hours contracts hit the media on 6 May, with a front page article in the Guardian and articles in many other publications and websites.

    For Sheila Gilmore's article on sanctions and zero-hours contracts, see tinyurl.com/pupm5tq.

    Government consultation on zero-hours contracts
    Following an information gathering exercise during summer 2013 about the use of zero-hours contracts, the government consulted from 19 December 2013 to 13 March 2014 on a number of potential actions it could take to prevent abuse and to maximise opportunities both for employers to hire new staff and for individuals to get work that suits them. Employment relations minister Jenny Willott said in Parliament on 19 March 2014 that there had been 36,000 responses to the consultation, and the government's response would be published "very shortly". According to 38 Degrees, 35,000 of the responses were from its members.

    Business secretary Vince said on 14 May 2014 that one possible outcome is for workers on zero-hours contracts to be given a right to request fixed contracts.

    The consultation looked in particular at exclusivity clauses which prevent the employee from working for other employers, and lack of transparency or awareness about the terms, conditions and consequences of zero-hours contracts for individuals, and the responsibilities of employers. The government said at the start of the consultation that it had no preferred options.

    In relation to exclusivity, suggestions set out in the consultation include legislation banning exclusivity clauses in contracts that offer no guarantee of work; government guidance on the fair use of exclusivity clauses; encouraging production of an employer-led code of practice on the fair use of exclusivity clauses, with an additional option to seek government sponsorship of that code; or continuing to rely on existing common law, which enables individuals to challenge exclusivity clauses.

    In relation to transparency, suggestions include improving the content and accessibility of information, advice and guidance; encouraging a broader, employer-led code of practice covering the fair use of zero-hours contracts generally; and/or the government producing model clauses for zero-hours contracts.

    The consultation documents are at tinyurl.com/mufc4p8.

    Reports on zero-hours contracts
    The Resolution Foundation, a thinktank carrying out research, analysis and policy development to improve living standards for people in Britain on low and middle incomes, published Zeroing in: Balancing protection and flexibility in the reform of zero-hours contracts on 25 March 2014. The report's five recommendations are:

    • employers should be obliged to provide a statement of employment particulars not only to employees, as at present, but also to people who are not legally employees but meet the legal definition of worker, including those on zero-hours contracts;
    • Acas should work with unions and employer representatives to develop a good practice guide, setting out non-statutory guidance on zero-hours contracts;
    • increased funding and better sharing of information should be made available, to increase the likelihood that employers who abuse zero-hours contracts are identified and pursued;
    • exclusivity clauses in zero-hours contracts, prohibiting the worker working for anyone else, should be banned;
    • workers on zero-hours contracts who work a relatively consistent pattern of hours should, after 12 months of employment, be entitled to switch to a fixed-hours contract.
    As well as these general recommendations, the report also proposes changes to local authority commissioning, especially in social care, which would reduce the use of zero-hours contracts and help workers on the contracts.

    Zeroing in can be downloaded via tinyurl.com/q5hvx65.

    On 30 April 2014 the Office for National Statistics published its Analysis of employee contracts that do not guarantee a minimum number of hours. This definition includes some other contract types as well as zero-hours. Based on a survey of 5,000 businesses, the ONS estimates that in January to February 2014 there were around 1.4 million contracts that do not guarantee a minimum number of hours.

    A summary of the ONS report can be downloaded via tinyurl.com/p83636f. The full report can be downloaded from the summary, or direct from tinyurl.com/qju5sca.

    Give and take? Unravelling the true nature of zero-hours contracts, a report published by Acas on 12 May 2014 highlights a feeling of "effective exclusivity" amongst workers on zero-hours contracts. Even where employers did not impose exclusivity — prohibiting workers on zero-hours contracts from working for another employer — workers were afraid to look for work elsewhere, turn down hours when offered or question their employment rights, for fear their work would be withdrawn or reduced.

    The report was based on recent research, and on calls to the Acas helpline from employers and employees about zero-hours contracts — an average of 70 per week. The report can be downloaded via tinyurl.com/mx8vjb7.

    Guidance on zero-hours contracts
    In November 2013, the Chartered Institute for Personnel and Development (CIPD), in collaboration with Lewis Silkin solicitors, published Zero-hours contracts: Understanding the law, a new guide which cuts through the misinformation and confusion.

    The guide covers:
    • what a zero-hours contract is, including the different arrangements that may be called zero-hours contracts;
    • employment status, covering employees, workers and self-employed people, and how the specific reality of a zero-hours arrangement determines which category the individual falls into;
    • summary of legal rights and protections for each status;
    • the pros and cons of each status from both the employer's and the individual's point of view;
    • how to decide which contract to use;
    • difficult issues, including inclusivity, holiday pay, national minimum wage, and statutory sick pay.
    An appendix summarises three cases where individuals who appeared to be self-employed were held by the courts to be workers, one case where an individual who appeared to be an employee was held by the courts not to be an employee, and a case where individuals who appeared to be workers were held by the courts to be employees.

    The guide can be accessed on the CIPD website via www.tinyurl.com/kxe5tgw.

    CIPD's factsheet on zero-hours contracts covers the same issues, but is much shorter. Most recently updated in
    October 2014, it is at tinyurl.com/py659xu.

    CIPD research
    Research carried out by CIPD in summer 2013 showed that as many as one million people may be working under zero-hours contracts, with 34% of voluntary sector employers using them — significantly more than public or private sector employers (24% and 17% respectively).

    But as CIPD says, "The assumption that all zero-hours contracts are 'bad' and the suggestion from some quarters that they should be banned should be questioned. ... Zero-hours contracts, used appropriately, can provide flexibility for employers and employees and can play a positive role in creating more flexible working opportunities. This can for example allow parents of young children, carers, students and others to fit work around their home lives. However, for some this may be a significant disadvantage where they need more certainty in their working hours and earnings, and we need to ensure that proper support for employees and their rights are not being compromised through such arrangements. Zero-hours contracts cannot be used simply to avoid an employer’s responsibilities to its employees."

    The CIPD news release about its research, published on 5 August 2013, is at tinyurl.com/pb3akgj.

    Zero-hours legal cases
    Sports Direct has 20,000 part-time "casual" sales assistants, comprising 90% of its staff, who are on zero-hours contracts and receive no paid annual leave and no sick pay. Nor are they entitled to the bonus share scheme, under which Sports Direct's full-time employees received an average of 12,000 shares each in July 2013.

    Zahera Gabriel-Abraham, a casual sales assistant at the Croydon branch of Sports Direct from October 2012 to July 2013, brought a claim against the company in August 2013 for indirect sex discrimination and unfair treatment under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The case will be heard in the employment tribunal in
    November 2014.

    A press release from Leigh Day solicitors, who are representing Gabriel-Abraham, is at tinyurl.com/nswb86c. Campaigning organisation 38 Degrees has raised funds to support the legal case, and is encouraging people to email Sports Direct asking the company to give workers the choice of a proper contract with guaranteed hours and benefits if they want them. Details are at tinyurl.com/pv5kqfz.

    The part-time workers regulations are at www.legislation.gov.uk/uksi/2000/1551/contents/made.

    A decision by the employment appeal tribunal in August 2012 involved carers who were given zero-hours contracts saying the employer had no obligation to provide work and the workers were free to work for another employer. The EAT found that the contracts did not reflect the reality of the situation, because the carers were obliged to carry out the work offered and had to do it personally. In addition, the tribunal said, the employer was providing a critical care package "of a most challenging kind" which could not be based on ad hoc arrangements. This decision illustrates that tribunals will look at the reality of an arrangement, rather than what the contract might say.

    The EAT decision in Pulse Healthcare Ltd v Carewatch Care Services Ltd & others is at www.bailii.org/uk/cases/UKEAT/2012/0123_12_0608.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
    Go back to contents
    Go to archived items about employment status (VSLH3 chapter 25)
    Go to archived items about employment rights (VSLH3 chapter 26)


    INTERNSHIPS: ISSUES AND RESOURCES

    Updated 13/11/13. This information updates ss.25.6.1 & 26.4.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    With the economic situation and cuts, there has been increased interest in internships — and increased confusion about whether and how much interns must be paid.

    In the UK, there is no statutory or common law definition of intern. Indeed, the concept of an intern is an import from the US, where university students and graduates who can afford it often spend up to a year doing unpaid or low paid work, as a first step on what they hope will be a career ladder into politics, the media or other desirable occupations. The employment rights of interns do not seem to be an issue in the US, perhaps because the idea of interns is well established and therefore less likely to be challenged.

    In the UK, employers may use "internship" in the same way as in the US; or to make a long-term volunteer role, especially one intended for a graduate or someone with equivalent experience, sound more professional or interesting than mere volunteering; or to hire someone who for all intents and purposes will be doing the same work as an employee would do, but without having to pay them or give them employment rights. The word is used in a variety of ways, and none has any meaning legally.

    In the UK, an intern will, depending on the precise nature of the so-called internship, fall into one of the following legal categories:

    • a student on work experience or a work placement linked to their course;
    • a volunteer;
    • a 'worker' entitled to minimum wage, working time rights including paid holiday, and protection under the equality legislation; or
    • an employee entitled to workers' rights and also the full range of employment rights.
    Unless volunteers or interns are legally workers or employees, they are not entitled to minimum wage or working time rights, and may not be protected against discrimination. But if they do meet the legal criteria for being workers or employees, they will be entitled to the relevant rights.

    In relation to volunteers most of the legal cases have involved discrimination claims by volunteers [see Supreme court confirms volunteering is not an 'occupation', below]. In relation to interns the main issue to date has been minimum wage, which is enforced not only by interns claiming minimum wage, but also by HM Revenue & Customs taking action against organisations that do not pay their interns or pay them less than the minimum wage level [Minimum wage, internships and work placements, below].

    Resources
    In recent years a number of organisations have tried to clarify or improve the rights of interns.

    The government's graduate talent pool website, set up in 2009 by what was then the Department of Innovation, Universities and Skills, matches recent graduates with internship opportunities. It is at graduatetalentpool.direct.gov.uk, with separate sections for employers to register internship positions and graduates to apply.

    The Chartered Institute of Personnel and Development's Internships that work: A guide for employers, published in December 2009 and updated in May 2013, covers how interns and employers can get the most out of internships, how much to pay interns, recruitment, induction, supervision and support, and how to structure short- and long-term internships. The 14-page guide is available via tinyurl.com/7txxnlk.

    Common best practice code for high-quality internships, published by the Trades Union Congress on behalf of the Gateways to the Professions Collaborative Forum, was launched in July 2011 and updated in September 2013. This 15-page code is essential reading for any organisation that uses or is considering using interns. The collaborative forum is made up of 60 professional bodies and related organisations, works closely with the Department for Business, Innovation and Skills, and is intended to help organisations ensure fair, open and high quality internships as a means of improving social mobility and enabling organisations to access wider talent pools. The code can be accessed from the Gov.uk website via tinyurl.com/qdcgfe4.

    Also accessible from the same Gov.uk link is Making internships work: An intern's guide, a two-page leaflet produced by Intern Aware and the University of Bournemouth. It's useful for interns but incorrectly states, in the paragraph headed "Am I entitled to be paid the National Minimum Wage as an intern?", that entitlement to minimum wage depends on whether the intern is being paid more than expenses. Intern Aware is a campaign to promote fairer access to internships by ensuring that all interns are paid at least the national minimum wage. It is at www.internaware.org.

    Another resource intended for interns is the Trades Union Congress' rights for interns app, which enables interns to assess whether they are legally classified as a worker and therefore likely to be entitled to minimum wage, understand their employment rights, rate the quality of their internship, and access appropriate information and guidance. The app is available as a free download for iPhone and Android devices, via www.tuc.org.uk/workplace/tuc-21750-f0.cfm.

    Trade union Unite and Intern Aware published Interns in the voluntary sector: Time to end exploitation on 15 May 2013, calling on charities and other voluntary organisations to stop using unpaid interns and to re-introduce paid entry-level jobs in the sector. The use of unpaid interns, the organisations argue, excludes many high quality applicants who cannot afford to work without pay, undermines the ethical aims of the sector, and undermines equal opportunity in the economy as a whole. The publication can be accessed via the link at the end of the press release at tinyurl.com/cflhhdx.

    The Arts Council England and Creative & Cultural Skills published Internships in the arts on 28 November 2011, providing advice on how to develop employment opportunities, and setting out the legal obligations for arts and cultural organisations offering internships. It is available via tinyurl.com/c4ozptx. The Arts Council no longer allows unpaid internships to be posted on its Arts Jobs website unless they are part of a recognised further or higher education course and are thus explicitly exempt from minimum wage.

    Although much of the concern about internships has focused on minimum wage, there is also a campaign for interns to be paid a reasonable rate for their work — not just minimum wage. Justice for Interns was set up in 2012 by Intern Aware and Graduate Fog, a website that provides advice on careers and job-hunting for graduates. The campaign supports individual interns who want to challenge their employers, and has had some successes. For information see graduatefog.co.uk/?s=%22justice+for+interns%22.

    For details of National minimum wage: Work experience and internships, published by the Department for Business, Innovation and Skills on 15 May 2013, see Minimum wage, internships and work placements, below.

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    WORK EXPERIENCE: ISSUES AND RESOURCES

    Updated 13/11/13. This information updates ss.25.6.1 & 26.4.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Work experience generally, but not always, refers to roles that are not graduate level, and may last for as little as a few days. Internships [see above] are a form of work experience, but the term is usually used for professional or graduate level roles, lasting up to a year.

    Depending on the nature of the work experience the person may, as with an internship, be a volunteer, a worker or an employee — so the same issues can arise in relation to entitlement to minimum wage and other employment-related rights [see above and Minimum wage, interns and work experience, below].

    The Chartered Institute of Personnel and Development's Work experience placements that work, published in June 2011 jointly with Jobcentre Plus and updated in April 2012, is intended to help employers raise the quality of work experience available to young job seekers. The guidance, along with Making work experience work, a short leaflet with practical tips for employers, can be downloaded at www.cipd.co.uk/workexperience.

    The full guidance includes, on p.4, a 10-point work experience charter. This is also available as a separate download on the CIPD website via tinyurl.com/kofanhn.

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    SUPREME COURT RULING ON COMPULSORY WORK SCHEMES FOR JOBSEEKERS

    Added 12/11/13. This information adds a new s.25.7 (Neither employees nor workers) and a new s.25.7.1 (Government work schemes) in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Both the Department for Work and Pensions and the two jobseekers who had challenged the DWP claimed victory following the supreme court decision on 30 October 2013 in what is colloquially referred to as the Poundland case.

    The DWP was pleased that the supreme court said compulsory "work for your benefit" schemes for jobseeker's allowance (JSA) claimants are not forced or compulsory labour, and thus are not in breach of article 4 of the European convention on human rights. Cait Reilly, one of the two JSA claimants who brought the case, said it was a great result that the court had upheld earlier rulings saying that regulations imposing the unpaid work requirement were insufficiently detailed and were therefore invalid.

    The case started in autumn 2011 when Reilly, an unemployed geology graduate who was volunteering part-time at a museum in Birmingham because she was interested in a career in museums, was told by her local Jobcentre Plus that she had to attend a four-week "sector-based work academy". It was not made clear to her that this would include two weeks of employability training, plus unpaid work for two weeks at Poundland. When she found out what it involved she told the jobcentre that she did not want to take part as she was already getting work experience at the museum and already had retail experience. She was told that participation was mandatory and her JSA would be reduced or withdrawn if she did not take part.

    She took part in the programme, including the Poundland placement, but in January 2012 sought a judicial review of the Jobseeker's Allowance (Employment, Skills and Enterprise Scheme) Regulations 2011. A judicial review was also sought by Jamie Wilson, an unemployed HGV lorry driver who refused to carry out compulsory unpaid work cleaning furniture for up to 30 hours per week for six months under the community action programme, and had his JSA stopped for six months. A judicial review looks at the way a law or decision was made, rather than at the content of the law or decision.

    The 2011 regulations, made under s.17A of the Jobseekers Act 1995, allow JSA claimants to be required to carry out work in schemes set up under the regulations — including the sector-based work academy and community action programmes — and to lose JSA if they refuse. But the Jobseekers Act says such schemes are valid only if the regulations include a "prescribed description" of them, and the claimant is given notice of what participation in the scheme will involve and the consequences of failing to participate in the scheme. Reilly's and Wilson's judicial review was based on the fact that the sector-based work academy and community action schemes were not described in the regulations, the two claimants were not given notice as required in the regulations, and Reilly had been subjected to forced or compulsory labour in breach of article 4 of the European convention on human rights (ECHR).

    The DWP countered this by saying there is only one scheme — the employment, skills and enterprise scheme — which is adequately described in the regulations, and that programmes such as the work academy and community action programme are part of that scheme and do not need to be separately described in regulations. DWP also, needless to say, claimed that the schemes were not in breach of the ECHR.

    The high court ruled on 6 August 2012 that the regulations were valid, and that the requirement for mandatory work did not breach article 4 of the ECHR. It also ruled that because the DWP had failed to provide notice to Reilly and Wilson as required, no sanctions could lawfully be imposed on them for failure to participate in the scheme — but this failure to provide notice did not make it unlawful for the claimants to have been required to participate in the schemes. The high court decision is at www.bailii.org/ew/cases/EWHC/Admin/2012/2292.html.

    Reilly and Wilson appealed and the DWP cross-appealed. On 12 February 2013, the court of appeal ruled that the 2011 regulations were invalid because they did not include sufficient details about the schemes, and should be quashed. The court also ruled that the notification requirements had not been complied with (because Reilly had not been given notice, and Wilson's notice did not comply with the regulations), and the schemes did not breach article 4 of the ECHR. The court of appeal decision is at www.bailii.org/ew/cases/EWCA/Civ/2013/66.html.

    The court of appeal ruling that the regulations were invalid meant that around 230,000 claimants could have been entitled to a total of £130 million compensation for benefit withheld unlawfully. However the government, anticipating the court of appeal ruling, had put in place the Jobseeker’s Allowance (Schemes for Assisting Persons to Obtain Employment) Regulations 2013. These came into force at 6.45pm on 12 February 2013, the same day as the court of appeal handed down its judgment, and provided one-paragraph descriptions of seven existing work for your benefit schemes — day one support for young people, Derbyshire mandatory youth activity programme, full-time training flexibility, new enterprise allowance, sector-based work academy, skills conditionality, and work programme — as well as specifying the nature of the notice that has to be given to claimants. These regulations are at www.legislation.gov.uk/uksi/2013/276/contents/made.

    On 26 March 2013, the same day as the DWP sought permission to appeal, the Jobseekers (Back to Work Schemes) Act 2013 came into effect, having been fast-tracked through Parliament in three days. This retrospectively validated the 2011 regulations, the programmes listed in the 2013 regulations (as well as the community action programme, which was not included in the 2013 regs), notices issued to claimants under the 2011 regulations (provided they referred to one of the schemes and described the potential effect on benefits if the claimant did not participate in the scheme), and benefit sanctions imposed under those regulations in relation to the schemes. Similar provisions were made for mandatory work activity placements which had not fully met the requirements of the Jobseeker's Allowance (Mandatory Work Activity Scheme) Regulations 2011. The 2013 act is at www.legislation.gov.uk/ukpga/2013/17, and the mandatory work activity regulations are at www.legislation.gov.uk/uksi/2011/688/contents/made.

    The mind boggles (or at least mine does) at a government that can put through secondary legislation (regulations) that do not comply with the primary legislation that allows those regulations to be created, then fail even to comply with the requirements in those regulations about what needs to be told to claimants, then reduce or remove benefits for 230,000 claimants who do not take part in schemes which have not been properly described and/or for which the claimants have not been told the implications of not participating — and then pass legislation making it OK that it had never complied with the rules. [Am I missing something here about the way the law is supposed to operate?]

    For a thoughtful commentary about the implications of retrospective legislation of this type, see the article by Eric Metcalfe on the Guardian's comment is free website, at tinyurl.com/q4c3alo.

    The DWP's decision making guidance, issued after the new legislation came into effect, can be accessed via tinyurl.com/mwqezmu.

    The DWP appealed the court of appeal decision to the supreme court, and Reilly and Wilson cross-appealed. The supreme court, in its ruling on 30 October 2013, upheld the court of appeal's ruling that the 2011 regulations had been invalid, but acknowledged that the regulations had by now been retrospectively validated.

    In relation to notice about the scheme and the implications of not participating, Reilly had not been given accurate notice so the regulations had not been followed. In Wilson's case, the supreme court found that the notice he was given did not fully comply with the requirements and was therefore invalid.

    In considering whether the requirement for compulsory work as a condition of receiving jobseeker's allowance constitutes forced or compulsory work as intended in article 4 of the European convention on human rights, the supreme court said, "The provision of a conditional benefit of that kind comes nowhere close to the type of exploitative conduct at which article 4 is aimed." It also pointed out that three reported cases failed at the European court of human rights, when they attempted to argue that making the payment of state unemployment benefit conditional on work contravened article 4.

    So: the DWP claimed a victory because the supreme court confirmed that the requirement for compulsory work as a condition of receiving state benefits does not breach the convention on human rights.

    And Reilly and Wilson claimed a victory because the supreme court confirmed that the DWP had acted unlawfully by creating work schemes that were not properly defined as required in the legislation, and by not giving proper information about the schemes to claimants. But it was a fairly hollow victory, given that the government had by then retrospectively legitimised everything it had done wrong.

    The supreme court decision in R (Reilly & another) v Secretary of State for Work and Pensions is at www.bailii.org/uk/cases/UKSC/2013/68.html.

    After the 2013 act was introduced in March, Public Interest Lawyers, the solicitors who acted for Reilly and Wilson, lodged another judicial review saying that this retrospective legislation undermines human rights. This legal challenge continues.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    CHALLENGING COMPULSORY WORK SCHEMES

    Added 12/11/13. This information adds a new s.25.7 (Neither employees nor workers) and a new s.25.7.1 (Government work schemes) in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The rules for some unemployment-related state benefits allow claimants to be required to do unpaid work, with the threat of their benefit being withdrawn if they do not. (Other benefits allow claimants to do unpaid work as a step towards finding work or gaining work experience, but do not withdraw benefit if the claimant does not do it.) Boycott Workfare is a campaigning organisation set up in 2010 to challenge schemes where a state benefit is withdraw if the claimant does not participate in a compulsory work placement. The organisation does not object to work placements, but to those where claimants do not have a say in the placement and lose benefit if they do not take part.

    Boycott Workfare has on its website a list of national and local charities, other voluntary organisations, social enterprises, public sector bodies and private businesses which take part in unpaid mandatory work schemes. It encourages people to report other organisations for inclusion on the list. Many former work providers have withdrawn from these schemes, saying they are willing to provide work experience but not where the claimant is under threat of losing their benefits if they do not participate or if they withdraw from their placement after the first week.

    The Boycott Workfare website is at www.boycottworkfare.org.

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    TAKING ON NEW EMPLOYEES


    CHECKING RIGHT TO WORK IN THE UK

    Updated 17/5/14. This information updates s.29.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 15 May 2014, an employer who hires someone who is not entitled to work in the UK can be subject to a civil penalty of up to £20,000 (increased from £10,000) for each person found to be working illegally, or a prison sentence of up to two years.

    From 16 May 2014, new statutory codes of practice on preventing illegal working and on avoiding unlawful discrimination while preventing illegal working come into effect, and there are some changes to the rules on checking documents.

    These changes have been brought in by the Immigration (Employment of Adults Subject to Immigration Control)(Maximum Penalty)(Amendment) Order 2014 and the Immigration (Restrictions on Employment)(Codes of Practice and Amendment) Order 2014. These and other immigration changes follow a Home Office consultation from 9 July to 20 August 2013. The consultation documents and the government's response are on the Home Office website via tinyurl.com/lujw3p6.

    Since 2008, employers have been subject to a civil penalty (initially £5,000 maximum) if they employ a person who is not eligible to work in the UK. However, employers have a statutory defence against a penalty if they have checked eligibility to work in the UK before employing the person. The check involves seeing the original of specified documents, and retaining copies.

    Under the changes from 16 May 2014:

    • The number of documents that are acceptable for checking an employee's right to work is reduced. The updated lists are on pp.14-15 of the code of practice on preventing illegal working, and are also in the employer's guide to right to work checks (both available via tinyurl.com/msqqa5d). Documents which no longer provide a statutory excuse are a UK-issued travel document which is not itself a passport, work permits, and general Home Office letters. In addition, any document which contains an expiry date must be current, unless it is a document showing that the holder is a British citizen, a citizen of the UK and colonies having the right of abode, a national of an European Economic Area (EEA) country or Switzerland or their family members with permanent residence.

    • From 16 May 2014 it is no longer necessary to keep a copy of the front page of a passport. Copies of other pages with information as specified in the code of practice must be kept.

    • For anyone hired on or after 29 February 2008 with a restriction on their right to remain in the UK, employers have had to repeat the check every 12 months. From 16 May 2014 this is no longer required, and the employer only has to carry out the check when the worker's permission to be in the UK is due to expire.

    • To ensure an employer knows when a tier 4 (general) student is entitled to work full-time (during vacations) or part-time (during term time), the student must provide the employer with evidence from their education sponsor, showing term and vacation times during the period for which they will be employed. If details for the whole period are not available, the employer must obtain later details when available.

    • For employees transferred under TUPE, the transferee (the new employer) has previously had 28 days to carry out right to work checks. For transfers on or after 16 May 2014 this is extended to 60 days.

    • When an employee's right to remain and work in the UK ends but the employer is reasonably satisfied that the employee has an outstanding application to the Home Office or an outstanding appeal on that application, the employer has a grace period of up to 28 days during which they will not be subject to a penalty for employing a person who is working illegally.
    To avoid allegations of racial discrimination the initial check should be done for all potential employees, and to establish the statutory defence it must be done before the person starts employment. A defence is not established if the check is done on the employee's first day or any time thereafter.

    In addition, employers have to take action if they become aware at any stage that a person is working illegally.

    In its consultation in 2013, the government proposed that directors of limited liability companies and partners in limited liability partnerships should be held jointly and severally liable for civil penalties if their company or LLP does not pay the penalty. This was broadly supported in the consultation, and the Home Office has said it will work with the Department for Business, Innovation and Skills to look at the company and partnership law implications.

    Information about all aspects of immigration is available from UK Visas & Immigration (formerly the UK Border Agency) at tinyurl.com/oaep7jp. Its helpline for employers and education providers is on 0300 1234 699.

    A "collection" page for employers on preventing illegal working, at tinyurl.com/msqqa5d, includes links to a wide range of documents on right to work checks and penalties for employing a worker who is not entitled to work in the UK. The most useful are likely to be:
    • two-page right to work checklist which the employer can use for each worker, indicating when the check was done, which documents were seen, confirmation that copies were made, and when (if applicable) the check needs to be repeated;

    • Right to work checks: An employer's guide, including checks on students and other specific categories (30pp);

    • Guidance for workers on preventing illegal working, October 2013, (84pp), more detailed than the above guide, with illustrations of relevant documents that can be used to check eligibility, information on checking biometric residence permits, restrictions on students from outside the EEA, the impact of fines when applying for a sponsor licence or on licensed sponsors [see Points based system, below], and best practice recommendations when carrying out document checks;

    • Preventing illegal working: Frequently asked questions (28pp): 70 questions (although at the moment, questions 49-55 replicate questions 40-46) under the headings right to work checks; immigration control; documents which are not acceptable for proving a right to work; definition of an employer; employing asylum seekers; employing workers from the EEA (it is this section which is replicated); employing students; and outstanding applications or appeals with the Home Office.
    Other guidance available from the collection page includes the code of practice on preventing illegal working (17pp), the code of practice on avoiding discrimination (11pp), and an employer's guide to administration of the civil penalties scheme (15pp).

    The Immigration, Asylum and Nationality Act 2006 is at www.opsi.gov.uk/acts/acts2006/20060013.htm.

    The Immigration (Employment of Adults Subject to Immigration Control)(Maximum Penalty)(Amendment) Order 2014 is at www.legislation.gov.uk/uksi/2014/1262/made.
    The Immigration (Restrictions on Employment)(Codes of Practice and Amendment) Order 2014 is at www.legislation.gov.uk/uksi/2014/1183/made.

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    RIGHT TO WORK IN THE UK: POINTS BASED SYSTEM

    Updated 28/3/14. This information updates s.29.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Rules continue to be tightened on people from outside the European Economic Area (EU + Iceland, Liechtenstein and Norway) and Switzerland working in the UK. The main rules likely to affect voluntary organisations as employers are set out below, but this is only a superficial overview of a complex and constantly changing area of law. For anything to do with immigration or the right to work in the UK it is essential to refer to detailed guidance from UK Visas & Immigration (UKVI; formerly the UK Border Agency) and if necessary to take specialist advice.

    Under the Immigration, Asylum and Nationality Act 2006, the right to enter or remain in Britain is based on a five-tier points based system, which changes regularly. Some recent changes that are likely to affect voluntary organisations are set out under the tiers below. A summary of the most recent statement of changes to the immigration rules, presented to Parliament on 13 March 2014, is at tinyurl.com/olxueap. Most of these changes came into effect on 6 April 2014.

    All detailed statements of changes, from 2003 until the most recent, are at tinyurl.com/nqspw8u. Comprehensible explanations of the changes are in the explanatory memorandum for each statement.

    The basis of the points based system is that any employer who wants to hire or continue to hire a migrant worker (any worker who is not from the EEA or Switzerland) in tier 2 or in most tier 5 categories has to register first with UK Visas & Immigration as a licensed sponsor. Registration as a sponsor is also required before any existing migrant worker's work permit in these tiers can be changed, extended or renewed.

    After registering, the sponsor then provides a certificate of sponsorship which enables the worker to apply to enter or remain in the UK. The decision as to whether the worker is admitted depends on the number of points the worker has. Points are based on the worker's skills (including aptitude, experience and age), the need for those skills in the UK economy, proficiency in English, prospective earnings, and funds available for maintenance. The level of funds the potential migrant must have available for maintenance is regularly increased.

    Sponsors are responsible for workers they sponsor and must, amongst other things, inform UKVI if the worker does not turn up for the job, or is absent from work without consent for more than 10 days. Detailed HR systems must be in place to monitor all sponsored workers.

    Information about all aspects of immigration is available from UKVI at tinyurl.com/oaep7jp, with information for employers and education providers at tinyurl.com/m2mjtdh and tinyurl.com/lpdj7bc. The helpline for employers and education providers is on 0300 1234 699.

    The Immigration, Asylum and Nationality Act 2006 is at www.legislation.gov.uk/ukpga/2006/13/contents.

    Tier 1: High value and exceptional talent
    Applicants for admission to the UK or the right to remain in the UK under tier 1 do not need a job offer before they apply. Their permission to work is not linked to a particular job or type of work, so they can undertake unlimited employment or self-employment.

    Categories in tier 1 are:

    • entrepreneurs who want to set up or take over, and be actively involved in running, a business or businesses in the UK;
    • investors who want make or have made a substantial financial investment in the UK;
    • exceptional talent, for up to 1,000 people per year who are recognised by a designated body (Arts Council, British Academy, Royal Academy of Engineering or Royal Society) or have the potential to be recognised as leaders in the fields of science and culture. Changes from 6 April 2014 include extending this category to people with exceptional talent in digital technology, endorsed by Tech City UK; and making it easier for applicants to apply from overseas and to count time spent in other immigration categories towards qualifying for settlement;
    • graduate entrepreneur, which was introduced on 6 April 2012 for 1,000 graduates who have been identified by a higher education institution or UK Trade and Investment as having developed world class innovative ideas or entrepreneurial skills. This was extended on 6 April 2013 to include a further 1000 MBA graduates, but from 6 April 2014 these places are no longer ringfenced for MBA graduates.
    Tier 2 (general) migrants, and sponsored researchers who are tier 5 (temporary worker) migrants, can apply to switch to the tier 1 (exceptional talent) route while they are in the UK.

    The former tier 1 (general) category for highly skilled workers was closed on 6 April 2011 to new applicants but remains open for extension and settlement applications. From 1 October 2013 stricter rules on evidence of earnings were introduced for these applications.

    The former tier 1 (post-study work) category allowing some graduates of UK educational institutions to remain in the UK and obtain work was closed to new applicants on 6 April 2012. However, it remains valid for those who applied prior to 6 April 2012 and were accepted. Graduates after 5 April 2012 who wish to remain in the UK must make an application under tier 2 [see below].

    Tier 2: Skilled workers
    Tier 2 (general) is for skilled individuals such as teachers, social workers and nurses. Tier 2 also has specific provisions for intra-company transfers, sports people, ministers of religion and some other religious workers, for whom different rules apply. Most tier 2 applicants have been admitted to the UK for up to three years, but from 6 April 2014 they will be able to be admitted for up to five years.

    Tier 2 (general) is the tier most likely to be used by voluntary organisations. An organisation which wants to hire a skilled worker from outside the EEA or Switzerland or will want to extend existing workers whose work permit ends, must register far enough in advance to ensure their sponsorship application can be processed in time for them to issue the worker with the necessary certificate of sponsorship — taking into account that there are very significant delays in the processing of sponsorship applications.

    Nearly all tier 2 (general) occupations must be at national vocational qualification framework (NQF) level 6, equivalent to a bachelor's degree level, with a salary at or above a level specified in the UK Visas & Immigration codes of practice. In changes introduced from 6 April 2012 the required skill level was increased, so even some level 6 jobs, such as IT technician and security manager, are no longer included. Some specified creative jobs, such as actors, authors, dancers and choreographers, and other types of jobs can be at a lower level. A new version of the codes is in effect from 6 April 2014; both the old and new versions can be accessed via tinyurl.com/lw2nb5u.

    The number of general visas issued annually is capped at 20,700 per year until 5 April 2014. [I can't find anything that says what happens after this date.] Workers whose annual salary is more than £153,500 (£152,100 prior to 6 April 2014) are not included in the cap.

    An employer must conduct a resident labour market test (RLMT) before it can issue a certificate of sponsorship for a tier 2 post, unless the occupation is on the government's list of shortage occupations or falls within the exceptions listed on the UKVI website. The RLMT requires the employer to advertise at JobCentre Plus and in at least one other specified medium, and be able to show it could not fill the post from within the UK, EEA or Switzerland. The advertising period is four weeks for all jobs, but the weeks do not have to run continuously. This means it is possible to advertise for two weeks, and if there is no suitable resident worker, then advertise for a further two weeks.

    Exceptions where the employer does not have to conduct a resident labour market test include jobs with salary above £153,500 (£152,100 prior to 6 April 2014) and PhD level jobs. These jobs, and others on the exceptions list, do not need to be advertised via JobCentre Plus, but do need to be advertised widely before a person from outside the EEA can be employed. For PhD level jobs, the job and a certificate of sponsorship can be offered to the best person for the post, even if there is an applicant from within the EEA who could do the work but is not considered best for the job

    A resident labour market test also does not have to be conducted before issuing a tier 2 certificate of sponsorship to a graduate whose tier 4 student leave has not expired. From 1 October 2013 this provision also applies to when issuing a tier 2 certificate to a tier 1 graduate entrepreneur. The annual limit on number of certificates does not apply to certificates offered in these circumstances.

    Tier 2 general migrants and sportspersons who entered the UK on or after 6 April 2011 can extend their leave to remain for a further three years, to take their stay up to a maximum of six years in total. Unlike those who entered the UK before that date they are not able to apply for indefinite extensions, but can apply for indefinite leave to remain after residing in the UK for five years.

    Migrants in all tier 2 categories cannot immediately re-apply for entry clearance if their tier 2 leave expires while they are outside the UK. In this situation, they cannot re-apply until 12 months after they left the UK.

    From 6 April 2018, many tier 2 migrants applying for leave to remain after having worked in the UK for five years will have to meet, for the first time, a minimum salary requirement of £35,500 per year (rising to £35,800 on 6 April 2019) or the appropriate rate for the job as set in the relevant code of practice, whichever is higher. The minimum salary requirement will not apply to applicants whose job appeared on the shortage occupations list or on a PhD-level occupation codes list at any time while they resided in the UK on a tier 2 scheme.

    Intra-company transfers. The rules on intra-company transfers cover only graduate level occupations, and entry is for a maximum of 12 months if the annual salary is less than £40,600 per year (£40,000 prior to 6 April 2014), or nine years if the salary is £153,500 or higher (£152,100 prior to 6 April 2014).

    Tier 3: Low-skilled workers
    Tier 3 is a limited quota system for low-skilled workers to fill temporary shortages in specific industries. It is brought into effect only when needed, and is not in effect at present.

    Tier 4: Students
    Tier 4 is for students who are not from the European Economic Area or Switzerland. Their university or college must be registered as a sponsor. Students are prohibited from studying at a lower level than stated on their confirmation of acceptance for studies.

    Students on tier 4 visas can work in the UK, but during term time this is restricted to a maximum of 10 or 20 hours per week including overtime (depending on the course and when their visa was issued). Before employing students for more than 10 hours per week, the employer should check how many hours the student can work and the exact dates of term time for their course.

    Students in tier 4 who complete degrees in the UK are able to apply to undertake corporate internships which directly relate to their degrees. These internships take place in the tier 5 government authorised exchange sub-category.

    According to the statement of changes laid before Parliament on 14 September 2013, the provision for internships "is being made in response to representations from businesses that such a change will make it easier to recruit graduates with specialist skills for internships with a view to offering them a permanent position in the future. As with any work experience scheme in this sub-category, roles must be supernumerary [must not replace a usual worker] and the person's stay is restricted to 12 months. Switching into tier 2 at the end of the internship is not permitted."

    It doesn't make sense to me that the purpose of the internships is to enable business to recruit interns with a view to offering a permanent position ... and then not allow them to switch to tier 2, which would be necessary for a permanent position. This seems to imply that the intern would have to leave the UK after the internship, and apply for the tier 2 permanent position from outside the UK.

    PhD students who have completed their course are able to remain in the UK for 12 months beyond the end of their course, to find skilled work or set up as an entrepreneur.

    Tier 5: Temporary workers and youth mobility schemes
    Tier 5 provisions for temporary workers cover:
    • charity workers coming to the UK to do unpaid voluntary work for a charity for up to 12 months;
    • sporting workers coming to the UK for up to 12 months;
    • entertainers or creative artists coming for up to 24 months;
    • religious workers who do not meet the criteria for entry under tier 2;
    • workers on government authorised exchange schemes including, from 6 April 2014, government sponsored language teachers;
    • employees of overseas governments and international organisations and those working under international agreements.
    Revised immigration rules in effect from 6 April 2013 include an updated list of permit free festivals and government authorised exchange schemes.

    Temporary workers must have a licensed sponsor. For those on government authorised exchange schemes, the sponsor is the body which manages the scheme, rather than the individual employer. The time limit for government authorised exchange schemes is 12 or 24 months, depending on the scheme.

    Tier 5 also covers youth mobility schemes. These are for young people aged 18-31 from Australia, Canada, Hong Kong, Japan, New Zealand, Monaco, Taiwan and South Korea coming to the UK for up to 24 months. The individual's national government is the sponsor.

    A tier 5 visitor route allows permitted paid engagements of up to one month without formal sponsorship. This allows academics, overseas designated pilot examiners and overseas qualified lawyers to undertake specified activities, and for professionals in the creative and sporting sections to undertake activity relating to arts, entertainment or sport. The paid engagement must relate to the visitor's area of expertise, must be arranged prior to their arrival in the UK through an invitation from an appropriate UK based body, cannot be for more than one month and cannot be extended.

    Short-term visitors
    A range of visas are available for short-term (up to six months) visitors to the UK, covering business visitors (coming to attend conferences or carry out specific work-related activities); sports visitors for specific events; entertainer visitors to take part in certain events (including charity shows); student visitors for students on short courses; and general visitors. Short-term visitor visas do not allow for the visitor to be paid, but the tier 5 visa for permitted paid visitors allows some short-term visitors to be paid [see tier 5, above].

    Student visitors. Student visitor visas are specifically for students coming to the UK to undertake a short course of study (up to six months) that does not involve work or a work placement. It is also available for students enrolled on a degree level course outside the UK to come to the UK for no more than six months at the invitation of a university in the UK, to undertake research as part of that course.

    Prospective students. In the past, prospective students could come to the UK for up to six months in order to finalise their tier 4 study arrangements. This was little used, and was removed from 1 October 2013. Provision has been retained for persons granted leave to enter as a prospective student before 1 October 2013, for less than six months, to be granted leave to remain to complete a maximum of six months' stay.

    Very short-term studies. Apart from student visitors, short-term visitor visas do not generally allow for the visitor to undertake studies in the UK. But since 1 October 2013 some flexibility has been introduced, allowing short-term visitors to undertake up to 30 days of study, provided this is not the main purpose of their visit. The study must be recreational, English language or academic. Recreational study means leisure and holiday-type courses such as pottery or horse riding. Any other study (including English language) may only take place at an institution that holds a tier 4 sponsorship licence or is accredited by a Home Office-approved body.

    Business visitors. From 1 October 2013, internal auditors from global corporations can undertake short internal audits as business visitors rather than using the tier 2 intra-company transfer route. In addition, the training a business visitor can receive has been extended to include corporate training that is for the purposes of the visitor's employment overseas. The training must be delivered by a UK company whose main activity is not the provision of training, and is not part of the visitor's employer's corporate group.

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    FAILURE TO SHORTLIST APPLICANTS FROM OUTSIDE THE EEA

    Updated 30/3/13. This information updates s.29.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    An employer might consider it justifiable not to shortlist or interview a suitably qualified applicant from outside the EEA if a resident labour market test [see tier 2, above] is required for the position and the employer has not carried one out, or the employer does not believe a visa would be issued to allow a worker from outside the EEA to be hired for the position, or the employer does not want the hassle of having to apply to become a sponsor and put in place the necessary HR systems.

    However, an employment appeal tribunal decision in Osborne Clarke Services v A Purohit held that a firm's policy of not considering any application for solicitor training contracts from individuals requiring permission to work in the UK was indirect race discrimination.

    Osborne Clarke did not allow applications from non-EEA nationals, and automatically rejected any it received. For this particular recruitment the firm received 290 applications for their training contracts, shortlisted and assessed 56 candidates, and offered training contracts to 26. Its argument for not allowing applications from non-EEA nationals was that it would have so many suitable applicants from within the EEA that it would not be able to certify that it had not been able to fill its training positions from within the EEA, as is required when issuing a certificate of sponsorship.

    This and the firm's other arguments were rejected, because the code of practice on racial equality and employment is clear that selection should be based on merit alone, and the process of checking eligibility to work in the UK should take place after the most suitable candidate has been selected.

    The EAT said the firm had no objective basis for assuming a candidate's application for a visa would be rejected, and could not second-guess UKBA's decision. Osborne Clarke should therefore not have used their belief that a visa allowing a non-EEA national to take up the post would not be granted as a reason for not even considering applications from non-EEA nationals. Indeed, the tribunal pointed out that Osborne Clarke had previously applied for and obtained work permits for solicitors from outside the EEA.

    The implications of the decision are that employers recruiting for any position for which a suitable non-EEA national might apply should take preliminary advice from the UK Border Agency about the likelihood of a visa being granted for this type of work, before starting the recruitment process. According to Russell-Cooke Solicitors, "a clear indication in that advice that a work permit was unlikely to be available may be protective in any subsequent discrimination claim".

    However, the Osborne Clarke EAT decision was in February 2009, and I have not heard of any similar cases since. With the tightening up of tier 1 and tier 2 criteria since then, the range of positions for which visas are available has been significantly reduced. If recruitment is for a position for which the employer would not legally be permitted to issue a certificate of sponsorship and UKBA would not be able to issue a visa, it would not be race discrimination to refuse applications from non-EEA nationals.

    The decision is at www.bailii.org/uk/cases/UKEAT/2009/0305_08_0902.html

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    RIGHT TO WORK IN THE UK: EUROPEAN ECONOMIC AREA NATIONALS

    Updated 20/1/14. This information updates s.29.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The European Economic Area includes EU member states plus Iceland, Liechtenstein and Norway. Nationals of EEA countries and Switzerland have the right to live and work in the UK without having to comply with the points based system [see above]. They can stay in the UK for more than three months only if they are exercising their EU rights as a worker, student, self-employed person or self-sufficient person. Those not working or seeking work must be able to support themselves and their families and must have comprehensive medical insurance.

    Workers from central and eastern Europe
    Bulgaria and Romania joined the EU on 1 January 2007. Until 31 December 2013, rules based on the old work permit system applied to workers from those countries, requiring them to apply for work authorisation before starting work (unless they were exempt from requiring authorisation), and allowing them to work only in accordance with that authorisation. From 1 January 2014 these rules no longer apply, and nationals of Bulgaria and Romania are able to work or seek work in the UK without restriction.

    Croatia joined the EU on 1 July 2013. Worker authorisation rules similar to those which applied to Bulgaria and Romania will apply initially until
    30 June 2018 and can be renewed for a further two years. Information for employers who want to hire a Croatian national is available from UK Visas & Immigration.

    The Accession of Croatia (Immigration and Worker Authorisation) Regulations 2013 are at www.legislation.gov.uk/uksi/2013/1460/contents/made.

    Nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia have had the right to work in the UK since those countries joined the EU 1 May 2004, but had to register with the Home Office's workers registration scheme. This scheme ended on 30 April 2011.

    Involuntarily unemployed EEA nationals as workers
    From 1 January 2014 an EEA national who has worked in the UK for more than 12 months before becoming involuntarily unemployed may retain "worker" status for up to six months, while they are actively seeking work and have genuine prospects of employment. The status may be retained for longer than six months if they can provide compelling evidence that they are continuing to seek work and have a genuine chance of being engaged.

    An EEA national who has worked in the UK for less than six months may only retain worker status for a maximum of six months.

    These changes are included in the Immigration (European Economic Area)(Amendment) No.2 Regulations 2013, at www.legislation.gov.uk/uksi/2013/3032/made.

    Family members of EEA nationals
    From 8 November 2012, there are changes to the rights of EEA nationals and their family members to enter and reside in the UK. These changes are necessary to comply with recent European court of justice decisions in the Rahman and Ruiz Zambrano cases.

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    TUPE


    TUPE RESOURCES

    Updated 20/1/14. This information updates s.29.7 in The Russell-Cooke Voluntary Sector Legal Handbook.
    The Chartered Institute of Personnel and Development's (CIPD's) basic factsheet on TUPE, most recently updated in February 2014, is available via www.tinyurl.com/ca4mdq4.

    A guide to people management when preparing and transferring services, published by CIPD in June 2012, looks at people management requirements in transfers of staff and services in TUPE situations. Available on the CIPD website via tinyurl.com/cz9u5ls, it provides a minimum set of standards for all parties involved and sample documents relevant to most public sector and voluntary sector employers in the UK.

    Basic guidance, relevant to both employers and employees, is on the Gov.uk website at www.gov.uk/transfers-takeovers. It covers consulting and informing, transfers of employment contracts, redundancy, information about employees during transfers, insolvent businesses, employees working abroad, and sources of help and advice. Unfortunately Gov.uk does not provide the level of detail that the former Business Link website provided for employers, but it's a useful starting point.

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    CHANGES TO TUPE REGULATIONS

    Updated 17/5/14. This information updates s.29.7 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Amendments to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) in force from 31 January 2014 are intended to simplify TUPE and to ensure that the transfer of work from one employer to another is done fairly and efficiently. However, the general secretary of the Trades Union Congress has said that the "watering down of TUPE law will make it easier for private companies to compete to take over our public services by lowering staff costs and boosting their profits".

    The changes are set out in the Collective Redundancies and Transfer of Undertakings (Protection of Employment)(Amendment) Regulations 2014 (CRATUPEAR) and follow the government's call for evidence from November 2011 to January 2012 on the effectiveness of TUPE and proposals to simplify it, its response in September 2012, a consultation on its proposals from January to April 2013, publication of its response in September 2013, publication of draft regulations on 1 November 2013, and finally the regulations laid before Parliament on 10 January 2014.

    One of the most significant aspects of CRATUPEAR is that following the consultation in early 2013, the government did not take forward its major proposal to remove service provision changes (the transfer of a service from one employer to another, often through outsourcing) from within the scope of TUPE. Respondents to the consultation overwhelmingly said that if service provision changes were removed from TUPE, this would create significant uncertainty and would leave existing employers or contractors with significant redundancy liabilities. The government's spin on its change of mind is that keeping service provision changes within TUPE protects employees, because many of them will usually transfer to the new employer.

    Regulation 5 in the amendment regulations does, however, clarify that for there to be a service provision change, the activity carried out after the transfer must be fundamentally the same as before the transfer. This reflects the position in case law, such as Nottinghamshire Healthcare NHS Trust v N Hamshaw & others (www.bailii.org/uk/cases/UKEAT/2011/0037_11_0107.html), where the employment appeal tribunal ruled that there was no service provision change when a care home closed, residents moved into their own homes, and care which had been provided by NHS staff in the care home was transferred to two independent contractors who provided it to residents in their own homes.

    Other changes brought in by the regulations are as follows.

    • Regulation 3: From 31 January 2014, where the transferee (the new employer) proposes 20 more or redundancies after the transfer, it will be able to start collective redundancy consultation before the transfer, provided it gives written notice to the transferor (the current employer) and the transferor agrees. For the new employer, this will reduce the amount of time that has to be spent on consultation after the transfer, thus reducing the period during which wages have to be paid to potentially redundant employees.

    • Regulation 6: For transfers taking place on or after 31 January 2014, an employee's contract of employment can, as for changes before that date, be varied if the change is for a reason unconnected with the transfer, or if it is for an economic, technical or organisational (ETO) reason entailing changes in the workforce and the employer and employee agree. But from that date, the new employer can vary the contract for any other reason connected with the transfer, if the the contract allows for a variation of that type (for example, a mobility clause). While this may not give employers the leeway they sometimes want to vary contracts after a TUPE transfer, it does permit variation where the contract already allows for this.

    • The above provision does not apply where employees' terms and conditions are set out in collective agreements between trade union(s) and the employer. In this case, the new employer will not be able to renegotiate terms and conditions related to the transfer until one year after the transfer, and will be able to do so only if overall the change is no less favourable to the employee.

    • Regulations 6 & 8: From 31 January 2014 changes in the location of the workforce are classed as an ETO reason, and genuine place of work redundancies are not automatically unfair (i.e. they are potentially fair).

    • Regulation 7: For transfers on or after 31 January 2014, only collective agreements in place at the time of transfer will apply to the employment with the new employer. The new employer will not be bound by subsequent changes to a collective agreement if the employer is not a party to the changes and did not take part in the process for negotiating them.

      This reflects the EU court of justice (CJEU) judgment in Mark Alemo-Herron & others v Parkwood Leisure Ltd (www.bailii.org/eu/cases/EUECJ/2013/C42611.html), which concerned employees transferred when Lewisham Council contracted out its leisure services to a private company. That company then sold the services to Parkwood Leisure and the employees transferred again under TUPE. As council employees, their contractual terms had been negotiated with the NJC, the government collective bargaining body. When the NJC negotiated a pay increase after the employees were transferred to Parkwood, the company refused to honour it.

      The CJEU ruled on 18 July 2013 that the contractual rights transferred under the EU Acquired Rights Directive (on which TUPE is based) are "static" (the last term negotiated with the NJC, as of the date of transfer) rather than the "dynamic" contractual right to benefit from future negotiations. Regulation 7 brings this ruling into the UK's TUPE regulations, and regulation 6 allows the new employer, after one year has elapsed, to change the collective terms which were transferred.

    • Regulation 8: For transfers or dismissals taking place before 31 January 2014 or notice of dismissal given before this date, dismissal is automatically unfair if the sole or principal reason for the dismissal is the transfer itself, or a reason connected with the transfer that is not an ETO reason. For dismissals on or after 31 January, and where a notice of dismissal is given or dismissal takes place on or after this date, the dismissal is automatically unfair if the sole or principal reason is the transfer itself. This change reflects more closely the EU Acquired Rights Directive and decisions by the EU court of justice.

    • Regulation 10: For transfers taking place on or after 1 May 2014, the transferring employer must provide employee liability information at least 28 days before the transfer, rather than 14 days as at present. This will give the new employer more time to plan ahead and prepare for their new staff, and if necessary to challenge the information provided by the transferor.

    • Regulation 11: For transfers taking place on or after 31 July 2014, an employer which is a micro business (with 10 or fewer employees) and where there is neither a recognised union nor existing employee representatives, will be able to inform and consult employees directly regarding transfers rather than through representatives. This will remove the need for election of representatives.
    Detailed guidance (47pp) on TUPE and the amendments, issued by the Department for Business, Innovation and Skills, can be accessed via tinyurl.com/qd8rkmo. Bryan Cave Solicitors have a good four-page summary of the changes via tinyurl.com/pgoo4gs.

    The Collective Redundancies and Transfer of Undertakings (Protection of Employment)(Amendment) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/16/contents/made.
    The consultation documents and the government's response are at tinyurl.com/b74rhzv. A press release summarising the changes is at tinyurl.com/k28e435.

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    PAY


    NJC PAY SCALES FOR 2016-17 & 2017-18

    Updated 13/6/16. This information updates s.30.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The NJC (National Joint Council for Local Government Services) pay scales for 2016-17, which are in effect from 1 April 2016, were agreed on 16 May 2016, along with the scales for 2017-18.

    These pay rates are nationally negotiated between trade unions (GMB, Unison and Unite) and local government employers and are intended for use in local government, but many voluntary sector employees have contracts with their salary linked to NJC rates.

    The increases cover spinal column points (SCP) 6 to 49. SCP 1-5 no longer exist. For SCP over 49, some local authorities produce their own scale points, but these are not official NJC rates.

    The percentage increase for SCP 6-17, the total percentage increase over the two years ranges from 10.3% at SCP 6 to 2.3% at SCP 17, to ensure compliance with the national living wage. For SCP 18-49 the increase is 1% for 2016-17 and 1% for 2017-18.

    The 2016-17 and 2017-18 annual pay rates and other nationally agreed amounts such as London weighting are in an NJC circular issued on 16 May 2016, available on the South East Employers website at www.seemp.co.uk/lgs_pay_2016-17.pdf. The circular also shows hourly rates based on a 37-hour week.

    The South East Employers website also includes details of negotiations for JNC (Joint Negotiating Committee) youth and community workers pay and conditions, at tinyurl.com/jbhercv.

    The Northern Ireland Council for Voluntary Action (NICVA), which provides information for the UK voluntary sector on NJC negotiations, has an article about the increases at tinyurl.com/h8eup7u.

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    NATIONAL MINIMUM WAGE AND NATIONAL LIVING WAGE

    Updated 15/5/16. This information updates s.30.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 April 2016, a "national living wage" (NLW) was introduced for workers aged 25 and over. This is in effect a new tier of the national minimum wage, adding a 50p per hour premium to the adult minimum wage for workers aged 21 and over.

    For workers aged 25 and over, NLW must be paid from the first day in the worker's pay reference period that began on or after 1 April 2016. For workers paid per calendar month, this was 1 April. For workers paid weekly, NLW started on the first day of the first pay week on or after 1 April.

    This national living wage is a statutory obligation, and an employer who does not pay NLW or NMW can receive a penalty charge up to £20,000 per underpaid worker. The national living wage should not be confused with the living wage promoted by the Living Wage Foundation [see The living wage, below], which is not compulsory.

    Information about national minimum wage and national living wage is at www.gov.uk/national-minimum-wage and www.livingwage.gov.uk, with current and previous rates at www.gov.uk/national-minimum-wage-rates.

    The government is advising workers aged 25 and over whose hourly pay was less than £7.20 prior to 1 April to use the minimum wage/living wage calculator at www.gov.uk/am-i-getting-minimum-wage to check their April payslips, and to contact ACAS if they believe they are not receiving the increase (tel 0300 123 1100 Mon-Fri 8am-8pm, Sat 9am-1pm) or use the ACAS automated online helpline at www.acas.org.uk/index.aspx?articleid=4489.

    A minimum wage/living wage calculator for employers is at www.gov.uk/minimum-wage-calculator-employers.

    To help small employers meet the additional costs of NLW, the employment allowance was increased on 6 April 2016 from £2,000 to £3,000. The employment allowance offsets employers' national insurance contributions [see National insurance employment allowance, below].

    Despite the increase in employment allowance, employers in traditionally low paid sectors, such as social care, hospitality and retail, are concerned about the potential impact, especially because a higher hourly rate may also mean higher holiday pay, overtime, shift premiums, employer's pension contribution, and other payments calculated by reference to basic pay.

    Following media reports about major employers reducing workers' hours, pay rates and other benefits to offset the cost of introducing the national living wage, chancellor George Osborne warned employers that this is not within the spirit of the law, and some Labour MPs have called for penalties to be imposed on employers who seek to offset NLW in this way.

    Some employers may not care whether their actions are or are not within the spirit of the law, or about potential penalties that are not yet in force and may never be. But there is always the risk of reputational damage if such actions are publicised. More seriously, variations to pay, hours or benefits are likely to be in breach of contract unless the workers' contracts explicitly allow for such variations, and/or the procedures for varying contracts are strictly followed.

    A briefing by Addleshaw Goddard solicitors (9 May 2016) lists tactics introduced by some employers, and the potential implications of taking these steps. It can be accessed via tinyurl.com/gwkywwu.

    The current hourly rates, and rates from
    1 October 2016, are:

    From 1 October 2015

    • Workers aged 21 and over: £6.70 (3% increase from £6.50).
    • Youth development rate for workers aged 18 and not yet 21: £5.30 3.3% increase from £5.13).
    • Young workers rate for 16 and 17 year olds who are above school leaving age and are not apprentices: £3.87 (2.6% increase from £3.79.
    • Apprentices aged under 19 or 19 or over and in the first year of their apprenticeship: £3.30 (20% increase from £2.73). This applies to apprentices on traditional contracts of apprenticeship, and employed apprentices on government-supported level 2 and 3 schemes.
    • Accommodation offset rate (the daily amount that can be taken into account for living accommodation: £5.35 per day / £37.45 per week), 5.3% increase from £5.08 per day / £35.56 per week).
    From 1 April 2016
    • As above, but with a new "national living wage" tier for workers aged 25 and over: £7.20 (50p/7.5% increase from £6.70).
    From
    1 October 2016
    The government announced in March 2016 that it would accept the recommendations of the Low Pay Commission for minimum wage from October 2016.
    • National living wage for workers aged 25 and over: Remains £7.20 but will go up on 1 April 2017. The government expects it to be over £9 per hour by 2020.
    • Workers aged 21 and over: £6.95 (3.7% increase from £6.70).
    • Youth development rate for workers aged 18 and not yet 21: £5.55 (4.7% increase from £5.30).
    • Young workers rate for 16 and 17 year olds who are above school leaving age and are not apprentices: £4 (3.4% increase from £3.87.
    • Apprentices aged under 19, or 19 or over and in the first year of their apprenticeship: £3.40 (3% increase from £3.30).
    • Accommodation offset rate: £6 per day / £42 per week), 12.1% increase from £5.35 per day / £37.45 per week).
    Since 7 March 2014, some traineeships in England for people aged 16-25 have been exempted from minimum wage. Details were in the National Minimum Wage (Amendment) Regulations 2014 but have now been consolidated into reg.51 of the National Minimum Wage Regulations 2015 [see below].

    The National Minimum Wage Act 1998, setting out the basic legislation, is at www.legislation.gov.uk/ukpga/1998/39/contents.

    Twenty-two separate minimum wage statutory instruments (regulations) from 1999 through 2014, plus parts of six others, have been consolidated into the National Minimum Wage Regulations 2015. The new regulations do not include any substantive changes, but set out the statutory requirements in a logical order and make it much easier to find and apply them. The consolidated regulations came into effect on 6 April 2015 and are at www.legislation.gov.uk/uksi/2015/621/contents/made.

    The National Minimum Wage (Amendment) Regulations 2015, with the rates from 1 October 2015, are at www.legislation.gov.uk/uksi/2015/1724/made.

    The National Minimum Wage (Amendment) Regulations 2016, bringing in the national living wage, are at www.legislation.gov.uk/uksi/2016/684/made.

    Minimum wage enforcement
    National minimum wage and national living wage are enforced by HM Revenue and Customs. For pay reference periods starting on or after 1 April 2016, employers who do not pay the NMW must, if caught, pay the unpaid wages, plus a financial penalty of 200% of the underpayment for each worker found to be underpaid, to a maximum of £20,000 per worker. From 26 May 2015 to 31 March 2016 the financial penalty was 100% of the underpayment, to a maximum of £20,000 per worker. Prior to this, from 7 March 2014 until 26 May 2015 the financial penalty was a maximum of £20,000 total for all workers found to be underpaid, and prior to this it was 50% of the total unpaid wages, to a maximum of £5,000.

    The penalty is reduced by half if the underpayment is paid to the employee within 14 days.

    The April 2016 increase was brought in by the National Minimum Wage (Amendment) Regulations 2016 , at www.legislation.gov.uk/uksi/2016/68/made.

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    THE (ACTUAL) LIVING WAGE

    Updated 24/4/16. This information adds to s.30.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The campaign for a living wage, which is promoted by the Living Wage Foundation and is supported by all of the main political parties, seeks a voluntary commitment from employers to pay at least a living wage as set independently each year. The living wage is announced annually in November, and employers who are committed to paying the living wage are encouraged to implement the new rate as soon as possible and within six months of the annual announcement.

    This real living wage should not be confused with the statutory national living wage which came into effect on 1 April 2016 [see Minimum wage, above]. The national living wage is a 50p top-up on minimum wage for workers aged 25 or over, and is compulsory for all employers apart from a few exceptions. It is not linked to the actual cost of living.

    The real living wage is voluntary, is based on the cost of living, and is much higher than NLW. As the Foundation points out, the £9 promised for 2020 was already, by November 2014, below their £9.15 recommended living wage for London.

    In November 2015 the London living wage for
    2016, set by the Greater London Authority and covering all boroughs in Greater London, was announced as £9.40 per hour, a 2.7% increase on £9.15 per hour. The UK living wage for outside of London, set by the Centre for Research in Social Policy at Loughborough University, was announced at £8.25, a 5% increase on £7.85.

    An employer can become an accredited living wage employer by entering into an agreement with the Living Wage Foundation, agreeing to pay all directly employed staff the living wage, and putting a timetable in place for all contracted staff to move to the living wage.

    Information about the living wage, how it is calculated, accredited employers (including many voluntary organisations) and how to become a living wage employer is at www.livingwage.org.uk.

    The press releases announcing the changes for 2016 can be accessed on the Living Wage Foundation website via tinyurl.com/hdfcmvf (London) and tinyurl.com/of6xw9j (UK).

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    MINIMUM WAGE, INTERNSHIPS AND WORK EXPERIENCE

    Updated 13/11/13. This information updates s.30.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    For basic information about national minimum wage (NMW), including current rates, see Minimum wage, above.

    In response to increasing concern about the role and status of interns, the Department for Business, Innovation and Skills (BIS) updated its guidance on 15 May 2013 on how minimum wage applies to people on internships, placements or work experience, and those who are volunteering. National minimum wage: Work experience and internships is on the Gov.uk website at tinyurl.com/aqxegys.

    Legal definitions of work experience, placements and internships do not exist, but the guidance gives brief, non-legal definitions of these terms, and emphasises that NMW depends on the relationship between the organisation and individual, not on what that relationship is called. It makes clear that if a person is required to carry out specified work, receives money other than genuine reimbursement, receives benefits in kind, or is promised a contract or paid work in future, they are likely to be entitled to minimum wage, even if their work is called an internship, volunteering or work experience.

    Minimum wage does not have to be paid to:

    • students doing work as a required part of a UK-based further or higher education course, provided the work is related to their course and the placement does not last more than one year;
    • people undertaking work experience who are of compulsory school age;
    • people above compulsory school age but who have stayed on in full- or part-time education and are undertaking a work placement as a required part of their studies;
    • participants in government schemes or programmes to provide training, work experience or temporary work, or to help in seeking or obtaining work;
    • participants in EU lifelong learning programmes (Leonardo da Vinci, European community youth in action, Erasmus or Comenius);
    • workers in a charity, voluntary organisation, associated fundraising body or statutory body, who receive no monetary payments from the organisation other than reimbursement for expenses allowed within the minimum wage legislation, and who receive no benefits from the organisation other than allowed training and, in limited cases, accommodation. (The minimum wage legislation refers to workers who meet these requirements as "voluntary workers", to distinguish them from volunteers who receive no payment at all, not even reimbursement, or benefits from the organisation.)
    As well as detailed information about minimum wage for interns, people on work experience and voluntary workers, the BIS guidance also includes helpful information on work experience placements and internships, including recruitment advertising, written agreements, record keeping, and health and safety. It also includes realistic examples of interns, people on work experience, voluntary workers and unpaid workers who are entitled to minimum wage, and those who are not.

    Where an intern or person on work experience believes they are entitled to minimum wage (or more) they can bring a claim against the employer for payment of wages or minimum wage, or can report the employer to the pay and work rights helpline on 0800 917 2368. HMRC has said that it investigates every complaint of possible minimum wage abuse, and employment relations minister Jo Swinson said on 11 November 2013 that HMRC will prioritise any call from an intern. Even where a worker has not made a complaint, HMRC can investigate any employer or organisation it believes is not paying minimum wage.

    In December 2012, the Guardian reported that HMRC was investigating Goal.com, a football website which at the time used 30 unpaid interns to produce content for the website. In April 2013 Intern Aware, an organisation which campaigns for interns to be paid at least the minimum wage, gave Swinson a list of 100 businesses which were allegedly not paying minimum wage to their interns. Swinson passed the list to HMRC.

    [Intern poster]

    On 11 November 2013, Department for Business, Innovation and Skills and 4Talent (Channel 4's in-house scheme for interns and apprentices) published a video and posters intended to inform interns of their right to minimum wage. The video and posters (one of which is shown here) are on the national minimum wage Facebook page at www.facebook.com/#!/nmwage?fref=ts.

    BIS also announced that HMRC would be writing to 200 employers who had recently advertised intern opportunities and unpaid work, telling them that HMRC will shortly be carrying out targeted checks to ensure employers who have advertised internships are paying all their workers the correct minimum wage rate.

    HMRC announced that its ongoing campaign to inform the fashion industry, where there are many internships, about minimum wage rights had been successful, and most were now complying with the rules. Compliance probably increased significantly after HMRC required a major fashion chain to pay its 90 unpaid interns almost £60,000 (average £660) [see Minimum wage, above].

    The news release announcing the interns' rights video and posters, the letters HMRC will be sending out, and the fashion industry campaign is at tinyurl.com/m8nxzaj.

    Three days before the BIS/HMRC announcements, on 8 November 2013, trade union Unite said it would ask HMRC to investigate non-payment of interns in the charity sector, following analysis of recruitment advertising that showed one-third of the top 50 charities are using unpaid interns. The Unite news release is at tinyurl.com/ka2lusl.

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    MINIMUM WAGE AND ON-CALL/SLEEP-IN TIME

    Updated 19/10/14. This information updates s.30.2.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Where a worker is provided with living accommodation or sleeping facilities at or near work and is required to be available all or some time on call or standby, there is a statutory right under the National Minimum Wage Regulations 1999 (NMWR) to be paid at least minimum wage for the hours the person is "awake for the purpose of working". In the past, this was interpreted as meaning the person is actually working, or is required to be on call or standby and is awake. Under this interpretation, minimum wage is not payable when the worker is sleeping.

    But employment appeal tribunal decisions in 2013 (Whittlestone v BJP Home Support Ltd and 2014 (Esparon t/a Middle West Residential Care Home v Slavikovska) have said that in some circumstances (though not necessarily all), minimum wage is payable even when the worker is sleeping.

    These decisions on entitlement to minimum wage while required to be on call but being asleep have potentially huge implications for care homes and other employers with similar arrangements. Any organisation for whom the new decisions might apply should take advice. As well as the information below, further briefings issued in June 2014 are available from Russell-Cooke solicitors (tinyurl.com/lnp33no) and trade union Unite (tinyurl.com/mopmobz).

    Entitled to minimum wage even if asleep
    In Esparon t/a Middle West Residential Care Home v Slavikovska, the employment appeal tribunal ruled that a care worker was entitled to minimum wage for all the hours she was on call, even if she was sleeping. This decision, given on 8 May 2014, was based on the fact the employer had a statutory duty to ensure someone was on site at all times to deal with emergencies.

    The EAT said that because there was a statutory obligation for the worker to present, all the time she was present — not just the hours she was awake for the purpose of working — fell within the definition of "time work" in the National Minimum Wage Regulations. This decision makes clear that where there is a statutory requirement for the worker to be on the premises, minimum wage must be paid.

    The decision in this case is at www.bailii.org/uk/cases/UKEAT/2014/0217_12_0805.html.

    In a case in July 2013, the employment appeal tribunal said a care worker was entitled to minimum wage when required to be on the premises and on call, even if she was sleeping. For her normal work, caring for clients in their homes, the worker was paid an hourly rate. In addition, at times she was required to stay at the home of three clients from 11pm to 7am, for which she was paid a flat rate of £40, which was below the minimum wage hourly rate. A camp bed was provided and she was allowed to sleep except when her services were required.

    The employment tribunal said she was not entitled to minimum wage while she was asleep on these night shifts. The EAT disagreed, saying it was time work and she was entitled to minimum wage for all the time she was present, even though she had never, in all the overnight shifts she had done, been called upon to carry out any work with the service users.

    The EAT judge said, "In the circumstances of this particular case there could, in my view, have been no answer other than that it was work, and this, being a time work contract, was time work. That is because the evidence was that there had been agreement between the employer and the Claimant that she would work; she would have been disciplined if she had not been present throughout the period of time; she could not for instance slip out for a late night movie or for fish and chips. The fact that her physical services were not called upon during the night were on the basis I have expressed irrelevant since her job was to be there."

    On a separate issue, the EAT also said the worker was entitled to be paid for travel time when travelling between clients' homes. In an HMRC two-year investigation into minimum wage compliance on the care sector, failure to pay for travel time was said to be one of the main factors in non-compliance.

    The EAT decision in Whittlestone v BJP Home Support Ltd is at www.bailii.org/uk/cases/UKEAT/2013/0128_13_1907.html.

    Not entitled to minimum wage when asleep
    Confusingly, minimum wage legislation defines working time differently from the Working Time Regulations (WTR). Under the WTR, time when a worker is required to be at a place of work specified by the employer is working time, even if they are sleeping or doing something other than carrying out their duties. This includes sleep-in staff and others who have to be on or in the near vicinity of the employer’s premises even when not working, and workers who are provided with living accommodation in order to be on call. This interpretation of the WTR was confirmed by the European court of justice in Landeshauptstadt Kiel v Jaeger in 2003.

    However, it is not unknown for employment tribunals erroneously to apply the WTR definition to minimum wage cases, and rule that minimum wage is payable even when the worker is sleeping or otherwise not working. Where an employer has challenged such a decision, the employment appeal tribunal has generally overturned it. This is likely to change now that we have the above decisions saying that where workers are required to be on the premises, they are likely to be entitled to minimum wage even where sleeping.

    Two cases involving workers in sheltered accommodation illustrate EAT decisions prior to the Whittlestone and Slavikovska cases. The first involved two housekeepers working in sheltered accommodation who were required to be on the premises and on call overnight, on different nights, in addition to their basic working hours. Each was provided with private accommodation for her overnight time.

    Both brought claims on the basis that they were at work while on call, and were therefore entitled to be paid at least the minimum wage for all the hours. The employment tribunal said that because all the time they were on the premises counted as working time under the working time regulations, they were entitled to be paid for it.

    The employer appealed, and the employment appeal tribunal confirmed on 30 November 2010 that regardless of the definition of working time in the Working Time Regulations, the minimum wage regulations require minimum wage to be made only for the time the worker is awake for the purpose of working. The case was remitted to the employment tribunal to consider how long the housekeepers spent awake for the purpose of working, and how much pay they were therefore due.

    The EAT reached the same conclusion on 20 March 2012 in a very similar case, involving 10 housing support workers. The EAT made a key distinction between jobs where the person is required to work through the night and is entitled to national minimum wage for the full period (such as a security guard - even though they may not actually be working for some of the time); and a job where the worker has core hours, and then is required to be on call during additional hours. In this case, they are entitled to minimum wage for the additional hours only if they are awake for the purpose of working.

    The EAT decisions in South Manchester Abbeyfield Society Ltd v Hopkins and Wordsworth and City of Edinburgh Council v Lauder and others are at www.bailii.org/uk/cases/UKEAT/2010/0079_10_3011.html and www.bailii.org/uk/cases/UKEAT/2012/0048_11_2003.html.

    In another case, Wray v JW Lees & Co (Brewers) Ltd, the employment tribunal initially made the same error as in South Manchester Abbeyfield Society, conflating working time under the Working Time Regulations with "awake for the purpose of working" under the National Minimum Wage Regulations. In this case a publican had to live above the pub but did not have to be there outside her normal working hours when she was awake. She did, however, have to sleep there in order to provide minimum security, but did not have any duties during sleeping time apart from notifying the emergency services if necessary. The EAT found that the requirement to live and sleep above the pub did not entitle her to minimum wage for time she was not awake for the purpose of working.

    This decision is at www.bailii.org/uk/cases/UKEAT/2011/0102_11_1407.html.

    Similarly in Baxter v Titan Aviation Ltd, a driver who was required to stay overnight at a hotel or B&B before taking holidaymakers to their destination was held not to be entitled to minimum wage for the overnight time. The EAT decision in this case is at www.bailii.org/uk/cases/UKEAT/2011/0355_10_3008.html.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    EARNINGS FROM PERMITTED WORK

    Updated 1/10/15. This information updates s.30.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 October 2015, workers who are receiving employment and support allowance (ESA), incapacity benefit, severe disablement allowance, or national insurance credits or income support because of incapacity for work can earn up to £107.50 per week (increased from £104) for permitted work, without it affecting their benefit, for up to one year or for more than a year if it is supported permitted work.

    The permitted work limit is based on the adult national minimum wage for a job of 16 hours a week, rounded up to the nearest 50p above.

    The lower permitted work limit remains £20.

    Summaries of the permitted work and supported permitted work rules for ESA claimants on the Gov.uk website via tinyurl.com/c2uxopq. More detailed information is available from Disability Rights UK via tinyurl.com/n3uc75s.

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    TAX AND NATIONAL INSURANCE


    THE SCOTTISH RATE OF INCOME TAX

    Updated 24/4/16. This information updates s.30.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under ss.25-26 of the Scotland Act 2012, Scotland has power, from 6 April 2016, to set a Scottish rate of income tax. The Scottish rate applies, with some exceptions, to non-savings income of Scottish taxpayers, who are defined in the Scotland Act as UK residents whose sole or main place of residence is in Scotland for more of the tax year than in another part of the UK. Savings income will continue to be taxed at the appropriate UK rate.

    The Act provides for the UK government to reduce the UK element of income tax in Scotland by 10%, and for the Scottish Parliament to then add a new Scottish rate. So while, for example, the UK rates for basic, higher and additional income tax remain 20%, 40% and 45%, they will be reduced to 10%, 30% and 35% for Scottish taxpayers. If the Scottish rate is set at, say, 9%, the overall rates for Scottish taxpayers would be 19%, 39% and 44%; if the Scottish rate is set at 11.5% the overall rates would be 21.5%, 41.5% and 46.5%. There can be only one Scottish rate for each tax year (e.g. in these examples 9%, 11.5%) and it must be either a whole or half number.

    The Scottish rate of income tax for 2016-17 has been set at 10% — the same amount as the reduction from the UK rate — so the net effect is that for 2016-17, the overall rate for Scottish taxpayers is the same as for non-Scottish taxpayers.

    Although the tax rate may be the same, HMRC is giving Scottish taxpayers an S code, and employers must ensure they use this code if they receive it. Employers must ensure their payroll software is up to date so the new S code can be used or, if they use HMRC's basic PAYE tools, it must be the latest version issued in March 2016. HMRC is asking employers to encourage employees to notify HMRC if their sole or main residential address changes to Scotland, or changes from Scotland to another part of the UK.

    Information about the Scottish rate of income tax is on Gov.uk at www.gov.uk/scottish-rate-income-tax/how-it-works, and on the Scottish Government website via tinyurl.com/zbjeels.

    The Scotland Act 2012 is at www.legislation.gov.uk/ukpga/2012/11/contents.

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    TAX ALLOWANCES AND NATIONAL INSURANCE THRESHOLDS FOR 2016-17

    Updated 24/4/16. This information updates ss.30.4.4 and 30.4.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Income tax. From 6 April 2016 the basic personal allowance goes up from £10,600 per year to £11,000 (£212 per week, £917 per month). This is expected to increase to £11,500 from 6 April 2017.

    The age-related personal allowance for taxpayers aged 65 and over has been gradually phased out since 2012, and there is now no age-related differential.

    Basic rate tax remains 20%, higher rate 40% and additional rate 45%. The government has said these rates will not change before 2020.

    The threshold at which higher rate becomes payable is increased from £31,785 to £32,001 on 6 April 2016, and is expected to increase to £33,501 from 6 April 2017. The threshold for additional rate remains £150,000.

    National insurance lower earnings limit. From 6 April 2016 the national insurance lower earnings limit (the lowest level of earnings that can count towards entitlement to statutory sick pay and statutory maternity, paternity, adoption and shared parental pay) remains unchanged at £112 per week (£486 per month, £5,824 per year).

    Employee's national insurance contributions (NICs). The starting point for employee's national insurance contributions (the primary threshold) remains unchanged at £155 per week (£672 per month, £8,060 per year), and the upper earnings limit goes up from £815 to £827 per week (£3,583 per month, £43,000 per year).

    Employee's NICs remain 12% between the primary threshold (PT) and upper earnings limit, and 2% on earnings above the upper earnings limit (UEL) for employees in NI category A, apprentices under 25 (category H), and employees under 21 (category M).

    Other NI categories are B (5.85% between the PT and UEL and 2% above the UEL); category C (nil); and categories J and Z (2% and 2%).

    Employer's NICs. The starting point for employer's NICs is the secondary threshold, which remains £156 per week (£676 per month, £8,112 per year). The upper secondary threshold (for under 21s) and the apprentice upper secondary threshold (for apprentices under 25) are £827 per week (£3,583 per month, £43,000 per year).

    For NI categories A, B, C and J, employer's NICs remain 13.8% on all earnings above the secondary threshold. In an effort to boost employment of young people, since 6 April 2015 employers are exempt from NICs on earnings up to the secondary earnings threshold for category M under-21s (NI category M, £827 per week in 2016-17), but pay 13.8% employer's NICs on income above this.

    From
    6 April 2016 employers are also exempt on NICs on earnings up to a new secondary earnings limit for apprentices under the age of 25 who are following an approved UK government statutory apprenticeship framework. The frameworks can differ depending on the UK country. Eligible apprentices are in NI category H, and there is no employer's NIC on earnings up to £827 per week, £43,000 per year. Above this, employer's NICs are 13.8%.

    To ensure that national insurance is paid correctly for workers under the age of 21 and apprentices under the age of 25, it is essential to maintain accurate records of employees' date of birth.

    Further information. The tax and NI rates for 2016-17, along with the rates for statutory maternity, paternity, adoption, shared parental and sick pay (unchanged from 2015-16), are on Gov.uk via tinyurl.com/zq68tjb.

    HMRC's employer's guide to the exemption from secondary NICs on earnings of under-21s is at tinyurl.com/k9d3x6r. The legislation is the National Insurance Contributions Act 2014, at www.legislation.gov.uk/ukpga/2014/7/contents.

    Information on the exemption from secondary NICs on earnings of apprentices under 25 is at tinyurl.com/zypj57a. The legislation is the National Insurance Contributions Act 2015, at www.legislation.gov.uk/ukpga/2015/5/contents.

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    NATIONAL INSURANCE EMPLOYMENT ALLOWANCE

    Updated 24/4/16. This information updates s.30.4.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The employment allowance has been available since 6 April 2014 to nearly all private and voluntary sector employers who are liable for secondary class 1 national insurance contributions (employer's NICs), unless the employer falls within one of the exceptions. From 6 April 2016 the maximum annual allowance was increased from £2,000 to £3,000.

    Under s.1(1) of the National Insurance Contributions Act 2014, the employment allowance is available to any employer who is liable for secondary class 1 national insurance contributions (employer's NICs), unless the employer falls within one of the exceptions. However, all guidance on the Gov.uk website says that only businesses, charities and community amateur sport clubs are eligible — thus giving the erroneous impression that the allowance is not available to non-charitable not-for-profit organisations. If your organisation is not a charity and has employees for whom it pays employer's NICs, don't be put off by the misleading guidance!

    The allowance is administered through the PAYE real time information (RTI) system without involving additional administration for the employer, and carries on from year to year.

    Basic guidance about the allowance, including how to claim it and who is excluded from being able to claim is on the Gov.uk website at tinyurl.com/mvfp522. From here there is a link to a few pages of more detailed guidance, including rules for organisations with more than one PAYE scheme (they can only claim on one) and rather complicated rules on organisations that are connected with each other.

    The National Insurance Contributions Act 2014 is at www.legislation.gov.uk/ukpga/2014/7/contents/enacted.
    The Employment Allowance (Care and Support Workers) Regulations 2015, entitling some employers of care and support workers to claim, are at www.legislation.gov.uk/uksi/2015/578/made.

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    TAX AND NATIONAL INSURANCE ON BENEFITS IN KIND AND EXPENSES

    Updated 30/4/16. This information updates s.30.4.9 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Significant changes in how employee benefits in kind (BiKs) and expenses will be treated for tax and national insurance came into effect on 6 April 2016, following an extensive Office of Tax Simplification (OTS) review from December 2012 until mid-2014, and consultations by HM Revenue & Customs in 2014.

    The rules apply not only to employees but also to office holders, such as company directors. In the article below, 'employees' includes office holders.

    Abolition of the £8,500 threshold
    The £8,500 threshold that determines whether employees pay tax and national insurance on their taxable expenses and benefits in kind has been abolished for all employees apart from ministers of religion. Employees who were previously below the threshold will now be taxed on BiKs and taxable expenses, either through the payroll [see Payrolling of BIKs, below] or by the employer submitting a P11D for each employee at the end of the tax year, listing BiKs and taxable expenses received during the year.

    Concern was expressed during the consultation on this change about the impact on volunteers. The government's response was that income tax is only charged on earnings, including expenses and BiKs, where an office (such as being a company director) or employment exists. Because most volunteers who undertake unpaid voluntary work are not engaged under a contract of employment, the government said, they will not be affected by the abolition of the threshold, and will continue to be entitled to tax-free reimbursement of their out of pocket expenses.

    I have not seen anything about volunteers who receive reimbursements or BiKs which are not necessary for their work and could therefore potentially be taxable, or about organisations which are registered as companies or community benefit societies, and whose voluntary governing body members are therefore office holders.

    In these cases, expenses may fall within an an exemption [see Exemption for qualifying expenses and benefits, below], but if in doubt the organisation should take advice or contact HMRC.

    Statutory exemption for trivial benefits
    A statutory exemption, not yet in force, will allow employers to identify and treat certain low value benefits in kind (BiKs) given to their employees as trivial, and not subject to tax or national insurance. (Am I the only one who thinks trivial benefits in kind should be called Bikkies?)

    The current situation is that there is no minimum cost threshold below which BiKs are not taxable. However, employers can agree with HMRC that they can treat certain BiKs as trivial and therefore excluded from income tax and annual reporting. HMRC takes into account factors such as the cost of providing the BiK, the reason for providing it and the administrative burden that would be created for both the employer and HMRC if the BiK had to be reported as a taxable item. Guidance on the current treatment of trivial benefits is on Gov.uk via tinyurl.com/gouppar.

    The legislation which will create a statutory tax exemption is in clause 13 of the Finance (No.2) Bill at http://services.parliament.uk/bills/2015-16/financeno2.html. When it comes into effect, it will be backdated to
    6 April 2016.

    The national insurance disregard will need separate regulations. These will not be introduced until after the Finance (No.2) Bill has received royal assent, and the disregard will not come into effect until the regulations are in effect. There will therefore be a short period when class 1 national insurance contributions will be payable in relation to any BiKs that are still treated as earnings.

    When the legislation comes into effect, there will be certainty about which BiKs are or are not subject to tax or to national insurance contributions. The criteria are that:

    • the BiK must not be cash or a voucher that is exchangeable for cash;
    • the cost of providing the benefit, or the average cost where it is impractical to calculate the cost per person, must not exceed £50;
    • the employer must not give the BiK because of any contractual obligation to the employee, including a salary sacrifice scheme;
    • the BiK has to be provided by an employer to support their employees' welfare, and not in recognition of particular services performed by the employee in the course of the employment or in anticipation of such services (the example has been given of providing flowers to an employee who is ill);
    • where BiKs are given to members of an employee's family, the maximum value of BiKs which can be exempt from tax during the tax year is £300.
    Although the new rules are not yet in effect, the government issued draft guidance on 11 February 2016. This is on Gov.uk via tinyurl.com/hulw4dw. The front page of the guidance is daunting, but the content is (unlike a lot of HMRC documents) easily understandable.

    I especially like the example of the employer who gives Christmas bottles of wine @ £15 to 20 employees, and bottles @ £140 to five directors — and who wants to average the £1,000 total for the 25 employees and say the average cost was £40 so the directors' benefits are also trivial and therefore not subject to tax. No, I don't think so. But there's another example involving turkeys where it is OK to average.

    Exemption for qualifying expenses and benefits
    From 6 April 2016, an exemption has been introduced for qualifying expenses payments (reimbursements) and benefits in kind provided to employees (such as work-related travel costs and telephone calls, or clothing necessary for the work). The exemption applies where employees would have been eligible for tax relief if they had incurred and met the cost of the expenses or benefits themselves.

    This exemption replaces rules that required employers either to apply to HMRC for a dispensation enabling them to provide qualifying expenses and benefits free of tax and national insurance, or to report such expenses and benefits to HMRC on form P9D or P11D at the end of the tax year.

    To qualify for the new exemption, the employer must be either pay the employee a flat rate — either an HMRC benchmark rate or a bespoke (special) rate agreed by HMRC — or reimburse the employee's actual costs.

    The only HMRC benchmark rate is for subsistence (meals) when on business travel, ranging from £5 to £25. New rates for tax year 2016-17 are in the Income Tax (Approved Expenses) Regulations 2015 at www.legislation.gov.uk/uksi/2015/1948/made. HMRC's detailed explanation is at tinyurl.com/h5qhd5a.

    Any other expense, to be eligible for the exemption, must be reimbursement of the actual amount, or a bespoke flat rate agreed by HMRC. The form to apply for a bespoke rate is on Gov.uk via tinyurl.com/hfxt2dh.

    This exemption does not apply where the benefit is offered in conjunction with salary sacrifice arrangements.

    For expenses and benefits covered by the exemption, employees will automatically receive the tax relief they are entitled to.

    An employer who claims the exemption must ensure that all expenses and benefits are indeed eligible for tax relief. HMRC's A to Z of expenses and benefits, at http://tinyurl.com/pp3fcvb will need to be consulted to ensure the reimbursement or benefit can be included within the exemption. If HMRC subsequently finds that some tax should have been paid on the reimbursement or benefit, the employer will be liable.

    Expenses and benefits which are neither covered by the exemption nor trivial [see above] are subject to tax and national insurance in the usual way. They must either be submitted to HMRC on a P11D at the end of the tax year, or be put through the payroll during the year [see Payrolling, below].

    Information about the exemption is on pp.9-10 of HMRC's employer bulletin for February 2016, at tinyurl.com/gt7ab5v.

    Payrolling of expenses and benefits in kind
    It's too late to sign up for it now for tax year 2016-17, but you can start thinking about it for 2017-18.

    For those who got their act together in time and had suitable PAYE software, a statutory framework was introduced on
    6 April 2016 to support real time collection of tax on benefits in kind and expenses through payrolling, where the expenses or BiKs do not qualify for exemption [see above].

    Employers who did not sign up before 6 April 2016 will, if they wish, be able to register in due course for 2017-18. The scheme is voluntary, with no obligation on employers to opt in, and with the possibility of opting out with effect from the start of the following tax year.

    The scheme allows employers to add the cash equivalent of the employees’ BiKs or reimbursements to their pay and then tax them through the payroll, rather than by filling in form P11D at the end of the year and HMRC then adjusting the employee's tax code. The value of the BiK is not included in employees’ tax codes.

    Basic information about the scheme is on Gov.uk at tinyurl.com/oao33tc, with links to detailed guidance.

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    TAX ON EMPLOYER-PROVIDED ACCOMMODATION

    Added 30/4/16. This information updates s.30.4.9 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The government issued a call for evidence from 9 December 2015 to 3 February 2016 on changes to the tax rules on employer-provided accommodation. This follows an Office of Tax Simplification report on the current situation and recommendations for simplification in August 2014.

    Employer-provided accommodation is generally taxable, but there are exemptions where the accommodation is necessary or customary, such as ministers of religions or wardens of sheltered housing.

    The government is considering not only whether the exemptions need to be updated and simplified, but also whether they are still relevant, with the increasing availability of technology and more flexible ways of working.

    The consultation documents are at tinyurl.com/qcsljwr.

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    TAX-FREE CHILDCARE

    Updated 30/4/16. This information updates s.30.4.12 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The tax-free childcare scheme which was supposed to launch in autumn 2015 was delayed by a legal challenge brought by childcare voucher providers involved in the delivery of the current employer-supported childcare scheme, which tax-free childcare will eventually replace. The supreme court confirmed the government's proposals were lawful, but the legal action caused the launch to be postponed until early 2017.

    The new scheme is based on childcare accounts, which will provide eligible employed or self-employed parents with a government top-up of up to a £2,000 per year for each child aged under 12. If the child is disabled, the top-up can be up to £4,000 per year while the child is under 17.

    To be eligible, the parent (if a single parent) or, in most cases, both parents in a couple must be in work; must expect to earn at least the equivalent of 16 hours at the national living wage for the next 13 weeks (which would currently be £115.20 per week); and neither parent may earn more than £100,000 per year.

    The childcare accounts will be operated by National Savings & Investments (NS&I). For every 80p the parent pays into the account, to a maximum of £2,000 per quarter (£4,000 if the child is disabled), the government will pay in 20p, to a maximum of £500 per quarter £1,000 if the child is disabled). This is equivalent to the tax the parent paid on the amount they deposited. The money can then be used to pay any childcare provider regulated by Ofsted in England, or the equivalent bodies in Wales, Scotland and Northern Ireland.

    Unlike the current employer-supported childcare (ESC) scheme of childcare vouchers and directly contracted childcare, tax-free childcare does not directly involve employers. Workplace nurseries will not be affected by the changes.

    ESC will remain open to new entrants until April 2018. It will remain available to employees who are already members of their employer's scheme, for as long as they remain with their employer and for as long as their employer continues to offer the scheme. Alternatively an employee in the scheme can choose to move to tax-free childcare, but cannot receive support through both schemes at once. Information and advice will be provided so parents can understand the benefits of each scheme.

    Similarly, parents who are currently receiving tax credits or universal credit will need to decide whether to keep those benefits, or open a childcare account instead.

    Employers will have no direct involvement with the tax-free childcare scheme, but may choose to make payments into their employees' childcare accounts. Any such payments will be subject to tax and to employer's and employee's national insurance contributions.

    The government's "Tax-free childcare: 10 things parents should know" was updated on 18 March 2016 and is at tinyurl.com/ofcyzmx.

    The government's draft guidance on the original scheme is still on the Gov.uk website via tinyurl.com/kg7v5xb.

    The Childcare Payments Act 2014 is at www.legislation.gov.uk/ukpga/2014/28/contents.

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    PENSIONS


    STATE PENSIONS

    Updated 26/8/13. This information updates s.30.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    THIS ARTICLE IS SERIOUSLY OUT OF DATE AND MUST NOT BE RELIED UPON. I will update it a.a.a.p,

    Basic information about state pensions, including a state pension age calculator, is available at www.gov.uk/browse/working/state-pension. More detailed information, also including a calculator, is at www.pensionsadvisoryservice.org.uk.

    State pension age
    Major changes to state pensions, in particular increasing the state pension age, were set out in the Pensions Act 2007, most of which came into effect in April 2010. An accelerated timetable for increasing the state pension age from 65 to 68, announced by the government in October 2010, was set out in the Pensions Act 2011. Further changes were announced in November 2011 and are included in ss.25-26 of the Pensions Bill, which is currently going through Parliament.

    The Pensions Act 2007 is at www.legislation.gov.uk/ukpga/2007/22/contents.
    The 2011 Act is at www.legislation.gov.uk/ukpga/2011/19/contents.


    The current state pension age is 65 for men born before 6 December 1953, and 60 for women born before 6 April 1950. For women born between 6 April 1950 and 5 December 1953, the state pension age is being increased from 60 to 65 between 6 May 2010 and
    6 November 2018, to bring it in line with the pension age for men. The finishing date was originally October 2020, which would have given a pension age of 65 to women born up to October 1955.

    The pension age for both men and women was then supposed to increase from 65 to 66 between 2024 and 2026. But under the Pensions Act 2011 changes, this increase will take place from
    6 March 2019 to 6 September 2020, affecting men and women born between 6 December 1953 and 5 October 1954. For those born after 5 October 1954, the state pension age will be 66 until it starts increasing to 67.

    The increase from 66 to 67 was supposed to take place between 6 May 2034 and 6 March 2036, affecting people born between 6 April 1968 and 5 April 1969. But the government announced on 29 November 2011 that this would now happen eight years earlier, from
    6 May 2026 to 5 April 2028. This change is in the Pensions Bill which is currently going through Parliament, and means that people born between 6 April 1960 and 5 April 1961 will reach state pension age between 66 and 67, and those born on or after 6 March 1961 will have a state pension age of 67.

    The increase in state pension age from 67 to 68 is still supposed to take place from
    2044 to 2046. which will affect anyone born on or after 6 April 1977. If it is brought forward, which it almost certainly will be, it will affect people born earlier than 6 April 1977.

    State pension entitlement
    Updated 26/8/13.
    Under the Pensions Act 2007, a number of significant pension changes were brought in from 6 April 2010. These included:

    • the number of years' contributions needed for a full basic state pension was reduced to 30 (for people reaching pension age before 6 April 2010 it was 39 for women and 44 for men);
    • weekly credits were introduced for carers, enabling them to build up entitlement to a state pension;
    • the rules which entitle married women in some circumstances to increase their state pension based on their spouse's contributions were extended to married men and civil partners.
    Since 6 April 2009, people who reach(ed) state pension age between 6 April 2008 and 5 April 2015 and who already have at least 20 qualifying years on their national insurance record, are able to pay class 3 national insurance contributions for an additional six qualifying years (in addition to the six years which can already be paid for). This provision is intended primarily for women and carers who have had substantial periods when they were not working and did not make (or were not credited with) NI payments. Information about class 3 NI contributions is available via tinyurl.com/ybjfc94.

    Single tier state pension
    Updated 29/3/14.
    Under proposals in a government white paper published on 14 January 2013, a single tier state pension was expected to be introduced in April 2017 for people who reach state pension age after that date. But the government on 19 March 2013 said it would be brought forward to April 2016. The pension will be based on 35 years of national insurance contributions, and is intended to particularly benefit women, low earners and self employed people, who can find it difficult to earn a full state pension.

    The single tier pension is expected to be around £144 per week and is intended to replace the current arrangements of state pension, additional state pension (state second pension), and pension credit, although the pension credit guarantee will remain in place for those who need it.

    A reduced pension will be available for those who do not have 35 years of NI contributions but do have a minimum number of years. The minimum will be set in regulations.

    Information about the proposals is on the Gov.uk website at tinyurl.com/ceep9cp.

    Provision for the single tier pension is in ss.1-24 of the Pensions Bill, which is currently going through Parliament. It can be accessed via services.parliament.uk/bills/2013-14/pensions.html.

    A couple of points to be particularly aware of:

    • The additional second pension (also known as state second pension) will be abolished when the single tier pension is introduced. So also will the national insurance concession for employees who are in contracted out schemes rather than in the additional second pension. This could significantly increase the national insurance bill for employers and employees in defined benefit contracted out schemes.

    • As part of its preparation for the end of this national insurance concession, HMRC is requiring all employers, from 6 April 2014, to show the scheme contracted out number (SCON) on the PAYE full payment submission (FPS) for every employee who has been in a contracted out scheme at any time during the year. An explanation is on p.17 of the February 2014 employer bulletin, at tinyurl.com/nhnajgw.

      HMRC needs this information so it can, in future, identify the contracted-out pension scheme to which an employee belonged. Until now, HMRC obtained these details through a termination notice of contracted out employment submitted by the employer when an employee leaves. Collecting the information from April 2014 will remove the need for termination notices to be submitted in April 2016 when the contracting out arrangements end.

    Additional state pension (state second pension)
    Updated 26/8/13.
    Under the Pensions Act 2007, from around 2030 the additional state pension (also called state second pension), which tops up the basic state pension, will become flat rate. This presumably will not affect those who become eligible for the single tier state pension, as this will incorporate the additional pension.

    For those who are already receiving additional state pension prior to the introduction of single tier pension, I haven't researched whether the additional state pension element will become flat rate in 2030 or will continue at the previous rate. (And I don't intend to research it, because it will probably change before then anyway.)

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    Go to archived items about pensions (VSLH3 chapter 30)


    PENSION AUTO-ENROLMENT

    Updated 15/5/16. This information significantly changes s.30.6.9 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    In a phased roll-out which started on 1 October 2012, the Pensions Act 2008 and subsequent changes brought in by the Pensions Act 2011 require every eligible jobholder to be automatically enrolled (auto-enrolled) in the National Employment Savings Trust (NEST) unless they explicitly opt out or are a member of the employer's qualifying pension scheme. NEST is a defined contribution occupational pension scheme.

    Eligibility for auto-enrolment
    An eligible jobholder is anyone who:

    • works or ordinarily works in the UK under a contract of service (a contact of employment), including a temporary contract;
    • is aged between 22 and state pension age;
    • earns more than the automatic enrolment earnings trigger in the relevant pay reference period.
    The annual earnings trigger for automatic enrolment is £10,000 (£192 per week, £833 per month). The earnings trigger is reviewed annually.

    For workers who are paid weekly, the relevant pay reference period is a week. For those who are paid at intervals of more than one week, it is the period for which they are paid. This will usually be monthly.

    For workers employed after their employer has joined the scheme, there is an optional three-month waiting period during which the employer does not have to enrol the worker. The worker can choose to be enrolled during this period, if they wish.

    Non-eligible jobholders are those who work or ordinarily work in the UK under a contract of service but:
    • are aged 16-21 or above state pension age and have earnings above the earnings trigger in the relevant pay reference period; or
    • are aged 16-74 and have earnings less than the earnings trigger but above the annual lower level of qualifying earnings (£5,824, equivalent to £112 per week, £486 per month).
    These non-eligible jobholders are able to opt in to the pension scheme, and the employer has to pay an employer's contribution.

    Workers aged 16-74 and earning less than the lower level for qualifying earnings are entitled workers. They can join a pension scheme but the employer does not have to contribute, and the scheme can be different from the one offered to jobholders.

    The Pensions Regulator's guidance for employers on assessing the workforce [see Further information, below] explains how to determine eligibility and the pay reference period.

    Employers are prohibited from inducing workers to opt out or cease their membership of a qualifying pension scheme; or telling workers during a recruitment process that the person's decision to opt out of automatic enrolment will affect the outcome; or doing or failing to do something which results in the worker ceasing to be an active member of a qualifying pension scheme while still employed by the employer.


    Opting out
    Workers must be informed within six weeks of their right to opt out (or those who are not eligible for automatic enrolment must be informed of their right to opt in). Pensions legislation requires eligible jobholders who want to opt out to obtain an opt out form from the pension provider, not from the employer. This is to reduce the risk of jobholders being pressured by their employer to opt out.

    Staging dates
    The employer's duty to auto-enrol workers in NEST or another qualifying scheme is based on monthly staging dates from 1 October 2012 until February 2018, depending on the number of workers in the employer's largest PAYE scheme as at 1 April 2012. Employers can choose to join the scheme earlier than their staging date if certain conditions are met, and must join within four months of their staging date.

    Staging dates have already passed for employers with 30 or more workers in their PAYE scheme as at 1 April 2012. They have also passed for employers with fewer than 30 workers, with the last two characters in the PAYE reference numbers as specified in regulations.

    Future staging dates are listed below and are on the Pensions Regulator's website at www.tpr.gov.uk/staging:

    Fewer than 30 workers, with the last two characters in their PAYE reference numbers as follows:
    • 00, 05-07, E1-E9 or EA-EZ: 1 February 2016
    • 01, 08-11, F1-F9, G1-G9, FA-FZ or GA-GZ: 1 March 2016
    • 12-16, 3A-3Z, H1-H9 or HA-HZ: 1 April 2016
    • I1-I9 or IA-IZ: 1 May 2016
    • 17-22, 4A-4Z, J1-J9 or JA-JZ: 1 June 2016
    • 23-29, 5A-5Z, K1-K9 or KA-KZ: 1 July 2016
    • 30-37, 6A-6Z, L1-L9 or LA-LZ: 1 August 2016
    • N1-N9 or NA-NZ: 1 September 2016
    • 38-46, 7A-7Z, O1-O9 or OA-OZ: 1 October 2016
    • 47-57, 8A-8Z, Q1-Q9, R1-R9, S1-S9, T1-T9, QA-QZ, RA-RZ, SA-SZ or TA-TZ: 1 November 2016
    • 58-69, 9A-9Z, U1-U9, V1-V9, W1-W9, UA-UZ, VA-VZ or WA-WZ: 1 January 2017
    • 70-83, X1-X9, Y1-Y9, XA-XZ or YA-YZ: 1 February 2017
    • P1-P9 or PA-PZ: 1 March 2017
    • 84-91, 93-99: 1 April 2017
    Fewer than 30 workers unless otherwise described, and employers without a PAYE scheme: 1 April 2017

    New employers, with PAYE income first payable between the following dates:
    • 1 April 2012-31 March 2013: 1 May 2017
    • 1 April 2013-31 March 2014: 1 July 2017
    • 1 April 2014-31 March 2015: 1 August 2017
    • 1 April-31 December 2015: 1 October 2017
    • 1 January-20 September 2016: 1 November 2017
    • 1 October 2016-30 June 2017: 1 January 2018
    • 1 July-30 September 2017: 1 February 2018
    The Pensions Regulator sends employers full information 12 months before their staging date and again at three months before.

    Employers who already provide an occupational pension scheme (sometimes called company pension) need to find out whether it is a qualifying scheme, and if not, they will need to consider how it might need to be changed to be a qualifying scheme, whether it is the best way to meet the organisation's obligation to enrol its workers in NEST or a qualifying scheme, and what the implications are in relation to employees who may not have joined the scheme by the time they have to be enrolled in it.

    For all employers, advice may be needed on contractual issues, such as whether other employee benefits will need to be reduced in order to cover the costs of the organisation's pension contributions, or how to respond if employees start demanding higher pay to cover the cost of their contributions. Employers will also need to ensure their payroll software is compatible with the pension requirements.


    Contributions
    Statutory minimum contributions to the National Employment Savings Trust (NEST) or a qualifying scheme are being phased in, with the employer and worker each paying at least 1% of the worker's salary between the national insurance lower and upper limits (£5,824 and £43,000 in 2016-17) in phase 1. Phase1 runs from the staging date or earlier if the employer starts auto-enrolling earlier, until 30 September 2017.

    In phase 2, from 1 October 2017 to
    30 September 2018, the employer's contribution must be at least 2%, and the total contribution (employer and employee combined) must be 5% of salary. In phase 3, from October 2018, the employer's contribution must be at least 3% and the total contribution at least 8%.

    In addition, 1% tax relief will also be paid into the scheme for the worker.

    Statutory restrictions put a cap on contributions to NEST and prevent NEST accepting transfers from occupational pensions from employees' previous jobs. These limitations led to criticisms of the scheme, and concerns that it would not achieve its objectives of providing a low cost pension scheme for low to moderate earners, smaller employers and employers with high staff turnover, and allowing workers to consolidate their pension savings in one scheme.

    Following a call for evidence on NEST constraints from November 2012 to January 2013, the government announced on 9 July 2013 that it agreed that the statutory restrictions should be removed or eased, but not until automatic enrolment has been fully rolled out in
    2017.

    Further information
    Information for employers on all aspects of auto-enrolment, including how to assess the workforce, what workers need to be told and a template letter to send to them, and how to assess whether an existing pension scheme qualifies for auto-enrolment and how to find a pension provider, is at www.thepensionsregulator.gov.uk/employers.aspx.
    Information for individuals is at www.thepensionsregulator.gov.uk/individuals.aspx and for pension trustees at www.thepensionsregulator.gov.uk/trustees.aspx..

    CIPD has a range of strategic and practical resources on all aspects of auto-enrolment, including regularly updated introductory guidance. These resources can be accessed via tinyurl.com/kytojgr.

    Following its guidance for all charities in 2013, the Charity Finance Group published Auto-enrolment for small charities: What you need to know in September 2015. This 28-page guide covers research and preparation; getting ready to launch auto-enrolment, launching auto-enrolment; learning from others; directory of pensions providers; and resources. The guide can be downloaded, along with other information about charities and pensions, via tinyurl.com/zktzdwy.

    Information about NEST is at www.nestpensions.org.uk, with further information from the Pensions Advisory Service at www.pensionsadvisoryservice.org.uk/.

    Go back to contents
    Go to archived items about pensions (VSLH3 chapter 30)


    PENSION LIABILITY ON INCORPORATION, MERGER OR WINDING UP

    Updated 2/4/10. This information updates s.30.6.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    As defined under the Pensions Act 1995 s.75 and the Occupational Pension Schemes (Employer Debt on Withdrawal) Regulations 2005, a cessation event includes, for example, an incorporation where the assets and liabilities of an unincorporated organisation are transferred to the new incorporated body, a merger where all or part of organisation's undertakings are transferred to an existing or new organisation such that the original organisation no longer has any members in the pension scheme, winding up an organisation, withdrawing from the pension scheme, or reaching a point where the organisation has no more active members in the scheme and no eligible employees to whom membership can be offered.

    Under the 2005 regulations, when a cessation event occurs the organisation's withdrawal debt crystallises, which means the organisation could potentially become immediately liable for the full cost of pensions for its employees who are entitled to draw pensions now or in future, if these have not yet been fully covered by contributions to the pension scheme. And because of legal changes in the way the debt must be calculated, the debt is likely to be significant. But it is important to emphasise that the debt does not become payable unless there is a cessation event.

    The Occupational Pension Schemes (Employer Debt and Miscellaneous Amendments) Regulations 2008, which came into effect on 6 April 2008, eased some of the requirements when an organisation which is a member of a multi-employer defined benefit or final salary pension scheme has a cessation event. Under these regulations:

    • Where the cessation event is that there are no more members in the scheme, there is a 12-month grace period during which time the employer will presumably try to get at least one employee to join.
    • For other cessation events the pension provider and employer can agree a withdrawal arrangement under which the employer pays a specified amount based on how much has already been paid into the scheme. The employer puts in place a guarantor, agreed by the pension provider, who will if required pay the remainder of the potential debt.
    • In an arrangement specifically intended for "ongoing organisations with low levels of liquidity such as charities", the Pensions Regulator can agree with the pension provider an approved withdrawal arrangement, under which the employer can pay a lower amount. Where the cessation event is a winding up to incorporate or merge, the guarantor will presumably be the new incorporated or merged organisation.
    Since 6 April 2010 the Occupational Pension Schemes (Employer Debt and Miscellaneous Amendments) Regulations 2010 make it easier for two organisations which are associated with each other and are members of the same multi-employer defined benefit or final salary pension scheme to restructure, without triggering a cessation event. Strict procedural rules, set out in the regulations, must be followed, so both organisations should take advice at a very early stage from their legal advisors and pension providers.

    The 2010 regulations are at www.opsi.gov.uk/si/si2010/uksi_20100725_en_1.
    The 2008 regulations are at www.opsi.gov.uk/si/si2008/uksi_20080731_en_1.

    The Charity Commission has some guidance in its Defined benefit pension schemes and recent changes to pension legislation briefing (updated in June 2010) at tinyurl.com/ygysm8r.

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    Go to archived items about pensions (VSLH3 chapter 30)



    LEAVE AND TIME OFF
    [see also Parents and carers, below]


    WORKING TIME DIRECTIVE (LIMITATION) BILL

    Added 4/10/15. This information updates s.31.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Working Time Directive (Limitation) Bill is a private member's bill so may not progress through parliament, and the government's negotiations with the European Union about EU reform may mean it is irrelevant. But if it goes ahead, the bill will limit the application of the EU working time directive (WTD) in the UK, and have a huge impact on the working time rights of employees and other workers.

    The WTD sets out the right to five weeks paid annual leave (the UK's working time regulations give an extra 0.6 weeks), daily and weekly rest breaks, limits on night work, and — unless the worker has opted out — a maximum 48-hour working week.

    The bill was initially presented to parliament by Conservative MP Christopher Chope on 7 July 2014. The is called the first reading and there is no debate. At the second reading on 23 January 2015 debate was adjourned, and the the bill did not progress when parliament was prorogued for the general election.

    Chope presented his bill to the new parliament on 6 July 2015, and it was expected to have its second reading on 22 January 2016.

    The current bill may not be published until close to the second reading, but if it is the same as the original bill, it will say that the WTD and the UK's working time regulations (WTR) will not apply to:

    • any employee who with the agreement of the employer has chosen to opt out the provisions of the WTD and WTR;
    • doctors and other health professionals;
    • any time spent by an employee on call and not working;
    • the calculation of entitlements to holiday and holiday pay, bonuses and overtime;
    • time spent by employees overseas;
    • time spent in travelling to and from and between a place of work.
    Instead, these rights would depend on the contract of employment.

    The bill can be tracked through parliament via tinyurl.com/od5xork.

    Go back to contents
    Go to archived items about working time (VSLH3 chapter 31)


    EUROPEAN UNION REVIEW OF WORKING TIME DIRECTIVE

    Added 4/10/15. This information updates s.31.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The European Commission consulted from 1 December 2014 to 18 March 2015 on options and an impact assessment for a review the working time directive. The review is intended to analyse changes to the current legal framework which could lead to working time rules "which best meet the needs of workers, businesses, public services and consumers across the EU".

    The consultation documents and responses can be accessed on the Commission website via tinyurl.com/nk9kdf5.

    Go back to contents
    Go to archived items about working time (VSLH3 chapter 31)


    TRAVEL TO WORK TIME FOR MOBILE WORKERS

    Added 3/10/15. This information updates s.31.2.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Don't be misled by the alarming headlines in some media, giving the impression that a recent decision of the European court of justice has given all care workers who travel to clients a right to be paid for travel time for journeys from home to the first client of the day, and from the last client back to home. That decision was about working time rights, not about the right to be paid — although in some cases, depending on the worker's contract, there may now be a right to be paid for those hours.

    The UK's Working Time Regulations 1998 (WTR) as amended give employees, and others legally defined as workers, a range of rights, including daily rest breaks, daily and weekly rest periods, paid annual leave, rights relating to night and shift work, and a maximum on average weekly working time. The WTR implement the EU working time directive in the UK.

    The WTR define working time as time when a person is working, is at the employer's disposal, and is carrying out the worker's activities or duties. This includes, for example, business lunches, travel time where travel is required as part of the work, time worked at home where the employer has agreed beforehand that the work may or must be done at home, training directly related to the workers's job, and time spent working abroad, if the worker works for an employer who is based in the UK. It does not include routine travel between home and work.

    A European court of justice (ECJ) decision on 10 September 2015 confirmed that for workers with no fixed or habitual place of work, referred to as mobile workers, the time spent travelling from home to their first assignment each day, and from their last assignment back to home, counts as working time for the purposes of the EU working time directive (and therefore for the WTR in the UK).

    These mobile workers might include, for example, domiciliary care workers, sales representatives and field engineers, but only if they do not have an habitual place of work. This would usually be specified in their contract of employment.

    The ruling affects their working time rights, but does not apply to 'hours' as defined for minimum wage or other pay. A mobile worker will have a right to pay for travel time from home to the first assignment, and from the last assignment back to home, only if this is specified in their contract of employment.


    The case
    The ECJ case involved Tyco, a company in Spain whose technicians install and maintain anti-theft security systems throughout the country. Prior to 2011, the technicians reported each day to their regional office, got their assignments for the day and collected a company car, and returned the car to the office at the end of the day. The company correctly treated their working time as starting when they arrived at the office at the start of the day, and ending when they returned at the end of the day.

    When the regional offices were closed in 2011, the technicians were given a company car for the company's business, and each night received their assignments for the next day from the national headquarters in Madrid, via a mobile phone app. The company treated their working time as starting when the technician arrived at their first assignment each day, even though the journey time from home could be as much as three hours.

    In making its decision the the journey from home to work was working time, the ECJ's rationale was that the company had clearly treated the journey from a regional office to the first client of the day, and from the final client back to the regional office at the end of the day, as working time. As the court said, the only thing that changed after the closure of the regional offices was the departure point for the technicians' journey.


    The effect on working time rights: Workers without a fixed or habitual place of work
    Under the WTR the journey from home to a usual place of work, and back home from that place of work, is not classed as working time. The "working time" clock starts ticking on arrival at the usual place of work, and includes travel time to other locations during the working day, and back to that base. It does not include rest breaks when no work is done, and some other exceptions.

    Where the worker does not have a usual place of work, the extension of working time to include travel between home and the first assignments and back at the end of the day, will have a number of implications for working time rights.

    The WTR set a limit of 48 hours on average weekly working time, not only in this job but in all the person's work combined, averaged over a 17-week period. A worker can agree to work longer by opting out of the 48-hour limit. If the new ruling takes a mobile worker's working time above 48 hours a week and he or she has not opted out, the worker will have to sign an opt-out agreement, or the employer will have to reduce the working hours. This may have other implications, if the worker is no longer paid for the travelling time and their overall pay is thus reduced.

    Under the WTR, workers aged 18 and over are entitled to an uninterrupted 20-minute daily rest break if the actual (not average) working day is more than six hours. A mobile worker whose actual working day is now more than six hours, will become entitled to this break.

    Workers aged 18 and over are entitled to a daily rest period of 11 consecutive hours between the end of one working day and the start of the next, and a weekly rest period of 24 consecutive hours in each seven-day period, or two 24-hour periods in each 14-day period. This will affect mobile workers whose travel time from and back to home means they are no longer getting 11 hours rest break between the end of one work day and the start of the next, and/or the minimum weekly rest periods.

    For night workers, with some exceptions, the WTR set a limit of eight hours average working time in each 24-hour period (averaged over 17 weeks), and an absolute (not average) eight-hour night-time limit for work involving special hazards or serious physical or mental strain. Including travel time to and from work may mean mobile night workers are now working more than the allowed eight hours.

    Under the WTR, full-time workers are entitled to 5.6 weeks paid annual leave. This is pro rata for part-time workers. Part-time mobile workers will now have more hours of working time each week, so will be entitled to more pro rata annual leave.

    There are exceptions and specific rules relating to each of the above rights, so the information above should only be taken as a summary.

    For workers aged under 18, the working time entitlements are different.


    Workers who do have a fixed or habitual place of work
    The Tyco decision applies to workers who do not have a fixed or habitual place of work. What about those who do have a usual place of work, but sometimes — perhaps nearly all the time — start their working day by going to, or finish the working day by leaving from, somewhere that is not the usual place of work?

    Obviously, the starting point is the contract of employment. But what if it says nothing about whether these journeys are working time? Unable to find any clear information about this situation, I contacted the Acas helpline on 28 September. They confirmed the working time regulations do not explicitly refer to journeys from home to clients/customers where the worker has a fixed or habitual place of work, and there has been no case law. Acas expects this to be the next main area of WTR-related cases.

    My understanding of what the Acas advisor said is that until it is clarified, if the contract or a contractual staff handbook do not say anything it is up to the employer to decide whether to:

    • require the employee to come into the usual place of work first, so it is clear that the journey from home to the usual place of work is commuting and is not working time;
    • say that the journey from home to client or customer is an essential part of the work and therefore counts as working time;
    • say that the journey to the client or customer is no different from a commute and is therefore not working time; or
    • say that the portion of the journey which takes longer than the worker’s normal commute is working time.
    The bottom line is that the legal situation is, and at least for a while is likely to remain, unclear. If your organisation could be affected by this, specialist advice may be necessary to ensure the organisation will be able to justify its approach if a claim is ever brought against it.

    The effect on national minimum wage
    Very importantly, working time for the purpose of the working time regulations is different from working time for the purpose of minimum wage. The ECJ ruling applies only to working time as defined for working time rights. Payment for travel time at the start and end of the workday depends on what the workers' contract says about travel time to and from work, and on national legislation. In the UK this legislation is the National Minimum Wage Act 1998 and regulations, which are unaffected by the ECJ decision.

    National minimum wage (NMW) does not usually have to be paid for time between home and a place of work or a place where an assignment is carried out. Although there is an exception for workers who do "unmeasured work", this applies only to workers who are not paid an annual salary, do not have set hours, and whose pay is not based on their outputs or the number of hours they work. It is unlikely to apply to mobile workers, but any employer who believes its mobile workers may be entitled to NMW for travel time between home and work should take advice. This is not because of the ECJ working time decision, but because the employer should possibly have been paying minimum wage for those hours all along.


    The effect on other pay
    Apart from minimum wage rules — which are unlikely to make any difference for most mobile workers — employers and mobile workers need to be aware of the wording of the worker's contract. The contract might say, for example, that the worker must be paid "for all hours of work". Or a worker's right to overtime or time off in lieu might be triggered sooner than it would otherwise have been, when the travel time is is now taken into account.

    Action
    One employment solicitor has suggested it may be possible for an employer to specify a fixed or habitual place of work where this has not been done in the past. As with any variation of contract, specialist advice should be taken before doing this.

    Solicitors CMS Cameron McKenna wonder whether the decision would apply to mobile workers who were not themselves previously subject to the closure of a regional office or similar, but had from "day one" agreed an arrangement under which their first and last journeys of the day, between their homes and customer premises, were not thought of as working time. Probably not, they say, because the ECJ emphasised the underlying health and safety focus of the working time directive. Their briefing can be accessed via tinyurl.com/nzt639h.

    Dechert LLP recommends that employers take the following steps:
    • Identify whether any of your employees spend time travelling which could constitute "working time".
    • Review your contracts and handbooks to identify what, if any, written policy exists in terms of travelling time constituting working time, and the payment for such time.
    • Consider whether any amendments need to be made to your contracts and/or handbooks, and if so, whether a consultation process needs to be followed.
    • Consider whether it should be a term of the contract that an employee must live within a certain distance of the locations within which your company operates.
    • Consider implementing monitoring procedures to ensure that mobile employees are not abusing the time spent travelling to and from appointments at the start and end of their working day and that the requisite rest break provisions are properly adhered to.
    The Dechert article can be accessed via tinyurl.com/nf53sfg.

    From another solicitor comes the more stringent statement, "Employers who are concerned about employees performing personal tasks on the way from or to home may wish to put in place monitoring and disciplinary procedures to avoid abuse and perhaps make clear that workers must take the most direct route possible in their journeys, including between home and their first and last customers of the day." (Herbert Smith Freehills LLP, tinyurl.com/pzpe4jx).

    As of 28 September 2015 the Acas website at www.acas.org.uk/index.aspx?articleid=1373 says it is assessing the impact of this judgement on workers and employers — in relation to both the working time regulations and minimum wage — and will provide more detailed guidance when it is available.

    The ECJ decision in Federacion de Servicios Privados del sindicato Comisiones Obreras v Tyco Integrated Security SL & another is at www.bailii.org/eu/cases/EUECJ/2015/C26614.html.

    The ECJ's press release about the case is at tinyurl.com/oxct3s9. This has a very clear summary of the facts of the case and the reasons for the decision. An Out-law.com article at tinyurl.com/oz9ear3 looks at the implications.

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    RIGHT TO REQUEST FLEXIBLE WORKING FOR ALL EMPLOYEES

    Updated 4/10/15. This information updates s.31.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Children and Families Act 2014 introduced, from 30 June 2014, the right to request flexible working for all employees who have been with their employer for 26 consecutive weeks, not just those who are parents of children under 17 (or 18 if disabled) or carers of some adults, as was the case before 30 June 2014.

    Employers should ensure their flexible working policies apply to all eligible workers and reflect changes in the statutory requirements.

    The previous statutory procedure for flexible working requests by carers was amended to remove the requirement to be a carer, and the rigid statutory procedure for considering requests by parents and carers has been replaced by a duty to consider requests reasonably, a statutory code of practice for employers, and good practice guidance. The rule that a request for flexible leave can be made only once in a 12-month period remains.

    A significant change is that the employer can agree trial periods to assess the impact of the change before agreeing it as permanent, or temporary changes, for example to attend a long-term course or during a bereavement. Previously, all changes under the right to request flexible working led to a permanent variation of contract.

    The application for flexible working must be in writing and dated, and must state whether the employee has made any previous request to the employer for flexible working and if so when. A standard application form from the Department for Business, Innovation and Skills published a standard application form is at http://tinyurl.com/ov6vyb2.

    The law and good practice are set out in Acas' statutory code of practice and its separate good practice guidance. A summary of the new rules is at www.acas.org.uk/index.aspx?articleid=1616, along with links to both documents.

    The code of practice emphasises that employers must carefully examine all requests, and can reject them only for a business reason set out in the legislation. These reasons are the same as in the previous legislation: that the burden of any additional costs is unacceptable to the organisation; an inability to reorganise work among existing staff; inability to recruit additional staff; the employer considers the change will have a detrimental impact on quality; the employer considers the change would have a detrimental effect on the organisation's ability to meet customer demand; detrimental impact on performance; and/or there is insufficient work during the periods the employee proposes to work.

    The guidance, entitled Handling requests to work flexibly in a reasonable manner: An Acas guide, covers how to request flexible working; attitudes towards flexible working; developing a right to request policy; business reasons to consider a request to work flexibly; handling requests in a fair way, including multiple requests, prioritising requests and using trial periods; and handling disputes. There are examples of what the guidance means in practice.

    In practice, requests are likely to need to be considered in basically the same way as previously: the written request; a meeting to discuss the request (though this may not be necessary if the employer is going to agree the request); consideration by the employer, with the employer weighing up the benefits for both the employee and employer against any adverse business impact; informing the employee of the decision in writing; and allowing an appeal by the employee. But rather than having to comply with rigid timescales for each stage, as was previously the case, the employer has three months to make a decision and hear any appeal, starting from when the request was made. An extension can be agreed by the employee and employer, perhaps to allow time for a trial period.

    The maximum penalty for an employer's failure to comply with the procedure or rejecting the request for a reason that is not allowed is eight weeks' pay (currently capped at £475 per week). There is also, of course, the possibility of discrimination claims, so employers should ensure they keep records of reasons for decisions, and comply with the Acas guidelines on deciding competing or multiple requests.

    The Children and Families Act 2014 is at www.legislation.gov.uk/ukpga/2014/6/contents/enacted. The flexible working provisions are in part 9 (ss.131-134).
    The Flexible Working Regulations 2014 are at www.legislation.gov.uk/uksi/2014/1398/made.

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    UNUSED FLEXITIME (OR TIME OFF IN LIEU) ON TERMINATION

    Added 4/10/15. This information updates s.31.2.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The employment appeal tribunal (EAT) has found that an employee who was made redundant was not entitled to payment for 1,042 hours of unused flexitime accrued over four years.

    The employee was originally an event technician and was paid a salary plus an hourly rate for overtime. On promotion to multimedia producer, his salary went up significantly but there was no provision for paid overtime. Instead, the employer offered a flexitime scheme where if he worked more than his contractual hours, he could take time off at a time to suit the employer. (As far as I am aware this is just another way to describe time off in lieu.)

    Neither his contract nor the staff handbook said anything about how untaken flexitime would be dealt with when employment was terminated for any reason.

    In this case, the employee was contracted to work 45 hours a week, so 1,042 hours is more than 23 work weeks!

    The employment tribunal ruled that even though nothing had been agreed about how accrued hours would be dealt with on termination, a term allowing the employee to be paid should be implied into the contract in order to make the contract fair. It ordered the employer to pay the employee more than £12,000.

    When the employer appealed, the EAT said the employment tribunal, rather than implying a contractual provision for payment in order to make the contract fair, should have applied the usual tests for implying a term into a contract of employment. Is it necessary to make the contract work? Or is it a term which both parties would have said was agreed between them?

    The EAT agreed by a majority that using these criteria, payment on termination should not be implied into the contract. A minority of the EAT disagreed, saying it was obvious that the employee had not agreed to work for no pay. (Though presumably an equally convincing argument could be made that the employer had not agreed to pay for 23 weeks worth of overtime.)

    The case illustrates the importance of having clear contractual provisions for flexitime worked above contractual hours (or time off in lieu for overtime working, if that's what you call it). These should include how overtime working is agreed; how much time can be accrued; whether and how accrued time is monitored by the employer; whether accrued time needs to be taken within a specified period; whether time accrued but not taken can be paid when employment is terminated; and whether any provision about payment is different if the worker is dismissed for a disciplinary reason.

    The EAT decision in Vision Events (UK) Ltd v Paterson, in July 2013, is at www.bailii.org/uk/cases/UKEAT/2013/0015_13_1707.html.

    Hogan Lovells solicitors have a useful summary at tinyurl.com/nwqpnau.

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    WHAT NEEDS TO BE INCLUDED IN HOLIDAY PAY?

    Added 23/7/15. This information updates s.31.4.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under the Working Time Regulations 1998, pay for the 5.6 weeks' statutory holiday leave has in many, but not all, cases had to be based only on the worker's basic pay, without overtime payments, shift allowances, commission and other variable payments having to be included.

    But recent decisions in the European court of justice and UK courts mean that for many more workers, these additional payments will need to be taken into account when calculating holiday pay. Some of these decisions have been or are still being appealed, so there has been and continues to be considerable uncertainty.

    Below are a summary of the current situation at EU and UK level; the statutory framework for holiday leave and pay; descriptions of the key cases and issues arising from them; and an important section on implications and action for all employers who may be affected.

    Summary
    At EU level, the basic position is now clear and will not change:

    • for the 20 days of statutory annual leave (pro rata for part time workers) under the EU working time directive, holiday pay must be comparable to workers' "normal remuneration", in order to ensure workers are not discouraged from taking this leave;
    • normal remuneration includes basic pay, and any variable pay which the person receives sufficiently regularly for it to form part of their normal pay;

    • allowances must be included when calculating holiday pay if they are sufficiently regular, and are genuine remuneration rather than reimbursement for out of pocket expenses (Williams v British Airways, ECJ 2011);

    • commission payments must be included when calculating holiday pay if they are sufficiently regular (Lock v British Gas, ECJ 2014) — but this could potentially require new legislation in the UK, which will not be retrospective;

    • it is left to each member state to decide the details of what needs to be included in holiday pay to make it comparable to normal remuneration and how it is to be calculated.

    In the UK:
    • if a worker has normal working hours (a specified number of hours per week), holiday pay is based on the remuneration for those hours (Working Time Regulations 1998);

    • if a worker does not have fixed hours, holiday pay is based on average pay for the 12 weeks preceding the holiday (Working Time Regulations 1998) — although recent decisions have indicated that in some cases 12 weeks may not be the appropriate period;

    • pay for guaranteed overtime, which the employer is contractually obliged to provide and the worker is obliged to do, must be included when calculating holiday pay (a court of appeal case in 2004);

    • pay for non-guaranteed paid overtime, which the employer is not obliged to offer but the worker is contractually obliged to do it if it is offered, must be included when calculating holiday pay if it is sufficiently regular (Bear Scotland v Fulton, employment appeal tribunal 2014);

    • pay for voluntary overtime, which the employer is not obliged to offer and the worker is not obliged to do if it is offered, probably needs to be included if it is sufficiently regular, but at the moment the only court decision is in Northern Ireland and does not apply to the rest of the UK (Patterson v Castlereagh Borough Council, NI court of appeal 2015);

    • variable payments only need to be included in the calculation if there is some element of permanence or regularity — so occasional overtime pay or an annual bonus (chance would be a fine thing, in most of the voluntary sector) would not need to be included in the calculation, and regular overtime or commission would need to be, but there is no clarity yet about how regular or frequent the variable payments would need to be in order to form part of normal remuneration, and ultimately it will depend on each particular situation;

    • the additional payments do not need to be included in holiday pay for the eight additional days of statutory annual leave under the working time regulations, or for any days of contractual annual leave;

    • a claim for underpaid holiday pay must be brought within three months from the underpayment, and where the claim is for a series of underpayments, any gap of more than three months between underpayments breaks the series (Bear Scotland v Fulton);

    • for claims on or after 1 July 2015, any claim for a series of underpayments cannot go back more than two years (Deduction from Wages (Limitation) Regulations 2014).
    The section below on implications and action explains decisions employers may need to take, or at least be aware of.

    All employers whose workers receive variable pay, or any pay above their basic salary, should read the Acas guidance on calculating holiday pay at tinyurl.com/puh4wwl. This explains what should be considered when calculating holiday pay, dealing with pay for workers with atypical working patterns, and payment in lieu of holidays.

    I also recommend that you read a critique of the Acas guidance on a blog by Squire Patton Boggs solicitors at tinyurl.com/npbww9t.

    As is clear from the statutory framework and cases below, this is a complex and rapidly changing area. If in doubt about how to calculate holiday pay or deal with any related issues, it is essential to seek advice from Acas or a specialist employment law advisor.

    Limitation of claims
    The risk of claims backdated to 1998 when the Working Time Regulations came into effect has been reduced by the Deduction from Wages (Limitation) Regulations 2014. These introduced, for claims lodged on or after 1 July 2015, a two-year maximum on most retrospective unlawful deductions claims, including for holiday pay. These regulations are at www.legislation.gov.uk/uksi/2014/3322/made.

    In addition the employment appeal tribunal said, in the Bear Scotland decision, that a series of unlawful deductions from wages is broken if there is a gap of more than three months between the periods when the additional holiday pay was not paid. This will also reduce the period that can be covered by a claim or claims.

    The statutory framework
    Under the Working Time Regulations 1998 (WTR), workers are entitled to 5.6 weeks (28 days, based on a five-day week) statutory annual leave (pro rata for part-time workers). Under reg.16(3), statutory holiday pay is based on "a week’s pay" as defined by ss.221-224 of the Employment Rights Act 1996 (ERA).

    Ss.221-223 of the ERA say that where a worker has normal working hours (a specified number of hours per week), "a week's pay" is based on those hours. Following a court decision in 2004 (Bamsey & others v Albon Engineering & Manufacturing plc), overtime hours are included as part of these normal working hours only if they guaranteed: i.e. if the contract of employment requires the employer to provide overtime if it is available, and the worker is obliged to do it. Overtime hours which are not guaranteed and/or are voluntary (not obligatory) are not included, and any additional payment for these hours is not counted as part of "a week's pay".

    Under ERA s.224, where a worker's contract is not for a specified number of hours, "a week's pay" is based on the average remuneration received in the previous 12 weeks (excluding any weeks where the worker did not receive any pay), and includes overtime.

    The working time regulations are based on article 7 of the European working time directive, which provides for four weeks’ statutory annual leave (equivalent to 20 days for a five-day work week). The directive does not specify how holiday pay for those four weeks should be calculated.

    The extra 1.6 weeks/eight days under the UK regulations are to allow for the eight public holidays: new year's day, Easter Sunday, Easter Monday, early May bank holiday, late May bank holiday, August bank holiday, Christmas and boxing day. An employer can choose whether to include these holidays as part of workers' 28 days' statutory annual leave, or to give them separately.

    The ECJ decisions apply only to the four weeks' annual leave entitlement under the working time directive. Unless the UK legislation is changed or a UK court states otherwise, they do not apply to the additional 1.6 weeks entitlement under the working time regulations. Having a two-tier system, with different holiday pay rules for 20 days and the remaining eight days, is likely to cause administrative nightmares for employers.

    To make matters more complicated, contractual annual leave entitlement, beyond the 5.6 weeks statutory entitlement, depends on how the contract is worded. If it is unclear, this could also cause difficulties.

    The ECJ decisions, clarifying that the working time directive requires all members to ensure holiday pay is comparable to normal remuneration, are inconsistent with the UK working time regulations. So the UK tribunals and courts are now having to decide whether and how to apply the ECJ decisions in the UK context.

    In some cases, they are doing this through purposive interpretation, an approach which allows them to consider the original intention of the directive, and read words into the UK legislation where this is necessary to implement UK law consistently with the directive.

    The key ECJ and UK decisions are below.

    Key cases: Allowances and supplementary payments
    Williams & others v British Airways plc. Ms Williams and approximately 2,750 other British Airways pilots brought a claim in 2008 that their holiday pay should be based not only on their basic pay — as BA was doing — but also also on their £10 per hour flying pay supplement for time spent flying and £2.73 per hour supplementary payment for time away from base (TAFB).

    The employment tribunal and employment appeal tribunal found in favour of the pilots; the court of appeal found in favour of BA; the supreme court, before deciding the issues, referred a series of questions to the European court of justice (ECJ).

    In its judgment in September 2011, the ECJ said:
    • holiday pay must provide the worker with remuneration comparable to periods of work, therefore the calculation of holiday pay for the four weeks' leave entitlement under the working time directive must be based on the worker's "normal remuneration";

    • if holiday pay for workers who normally receive allowances is based only on basic pay, this could deter workers from taking their annual leave, which would be contrary to the intention of the working time directive;

    • therefore normal remuneration should include not only basic pay, but also allowances "intrinsically linked to performing tasks required under the worker's contract of employment", and allowances linked to seniority or professional status;

    • allowances intended exclusively to cover the worker's occasional or ancillary costs at the time of performing these tasks should not be included;

    • elements of pay based on the worker's personal and professional status, such as allowances for seniority, length of service and professional qualifications, must be included in holiday pay;

    • it was left to national courts to decide, based on the this decision, which elements of total pay should be included in holiday pay.
    The ECJ decision is at www.bailii.org/eu/cases/EUECJ/2011/C15510.html.

    Back at the UK supreme court in July 2012, the pilots said that each of their claims should be remitted to the employment tribunal to assess the relevant remuneration, and that the remuneration should include not merely basic pay and flying pay supplement, but also 18% of the time away from base supplement (the amount treated by HMRC as taxable remuneration). British Airways said that the entire TAFB supplement was intended to cover expenses, and should not be treated as remuneration for the purposes of calculating holiday pay.

    In its judgment in September 2012, the supreme court:
    • found in favour of the pilots and unanimously remitted the claims to the employment tribunal to assess the payments to be made;

    • said that the fact that HMRC regards 82% of the TAFB as covering costs and the remaining 18% as taxable remuneration is irrelevant, and the tribunal should itself assess how much of the TAFB is intended exclusively to cover costs, and is thus not to be included as remuneration when calculating holiday pay.
    The supreme court judgment in October 2012 is at www.bailii.org/uk/cases/UKSC/2012/43.html.

    Transcripts of employment tribunal decisions are not generally online, but significant transcripts are published on the Courts and Tribunals Judiciary website at www.judiciary.gov.uk, and significant or interesting cases are reported in specialist or mainstream media. However, I have not been able to find anything about the outcome of these tribunal cases.

    Key cases: Pay for non-guaranteed overtime
    Bear Scotland Ltd v Fulton & another; Hertel (UK) Ltd v Woods & others; Amec Group Ltd v Law & others. Non-guaranteed overtime (sometimes called compulsory overtime) is where the employer is not obliged to offer overtime, but if it is offered, the employee is contractually obliged to do the work.

    Non-guaranteed overtime is different from guaranteed paid overtime, which under the contract of employment the employer is obliged to offer and the worker is obliged to do. Since a court decision in 2004, this must be included when calculating holiday pay.

    Non-guaranteed overtime is also different from voluntary overtime, where the employer is not obliged to offer overtime, and if it is offered the worker can choose whether to accept it.

    The three cases above, heard jointly by the employment appeal tribunal and usually referred to collectively as Bear Scotland, all involved non-guaranteed overtime. The EAT's decision on 4 November 2014 said:
    • non-guaranteed overtime, which the worker is obliged to do if it is offered, is part of "normal remuneration" if it is intrinsically linked to the performance of tasks required under the contract, and must therefore be included when calculating holiday pay;

    • payment has to be made for "a sufficient period of time" to justify being treated as part of normal pay;

    • some allowances, such as an allowance for travel time which is remuneration for time rather than a reimbursement for expenses, also need to be taken into account for holiday pay;

    • these requirements apply only to the 20 days of annual leave required under the EU working time directive, and not to the additional eight days required under the UK working time regulations;

    • employers can decide which of the 28 days are the 20 to which the EU rules on holiday pay apply, but the additional eight days are referred to in the working time regulations as "additional leave", which "suggests that the dates of it should be the last to be agreed upon during the course of a leave year";

    • the working time regulations as worded are not compatible with the European working time directive, but are capable of being interpreted in a way that gives effect to the directive, which means there is no need for the UK government to change the legislation;

    • any claim for unpaid holiday pay — which would be made as a claim for an unauthorised deduction from wages — has to be made within three months from the underpayment, and where there is a series of underpayments, must be made within three months from the last in the series of underpayments;

    • where there is a series of underpayments, a gap of three months or longer between the alleged underpayments breaks the chain. So, for example, a worker who takes 15 days annual leave in August and five days in December will be able to claim for unpaid overtime within three months from the payment covering the December holiday, but not for the payment covering the August holiday.
    The employment appeal tribunal gave leave to appeal. Shortly after the decision, Unite the union said it would not appeal on behalf of the workers. I have not seen anything saying the employers have appealed, so assume they have not.

    The EAT judgment is at http://www.bailii.org/uk/cases/UKEAT/2014/0047_13_0411.html.

    Key cases: Voluntary overtime
    Neal v Freightliner Ltd. Mr Neal's contract was for five seven-hour shifts per week, and said he may be required to work overtime when necessary. In practice his rostered shifts were usually 8.5 or nine hours — and he occasionally worked up to 12 hours to cover for absent colleagues. He received an overtime premium (pay higher than his usual hourly rate) for the hours above 35. Following the Williams decision, he claimed his holiday pay should reflect his full pay, rather than only his basic pay for a 35-hour week.

    The employer said that the overtime was voluntary — not in the sense of being unpaid, but in the sense that Neal could agree whether to work the additional hours or not, and he had agreed to do them voluntarily.

    In its decision in July 2013 the employment tribunal said:
    • even though Neal had offered to do the overtime outside his 35 hours, this voluntary overtime was still intrinsically linked to the tasks he was required to do under his contract;

    • following the ECJ decision in Williams, overtime payments should be included when calculating holiday pay;

    • reg.16(3) of the working time regulations, as worded, does not adequately implement the working time directive, but it could be interpreted purposively to give effect to the directive, by excluding the provisions in the Employment Rights Act which say overtime should not be included in calculating holiday pay.
    The effect of this would be that a worker with overtime no longer has "normal working hours", and under ERA s.224, a week's holiday pay would be the average weekly remuneration in the 12 weeks before the holiday.

    Freightliner's argument that calculating weekly pay this way would encourage workers to work excessive hours in the weeks before a holiday was not valid, the tribunal judge said, because employers can control the terms on which overtime is offered and can therefore prevent excessive hours being worked.

    The tribunal decision is on the Pinsent Masons website via www.pinsentmasons.com/ELP/NealvFreightlinerLtd.pdf.

    Freightliner's appeal against the decision was due to be heard with the Bear Scotland cases, but was settled before getting to the employment appeal tribunal. Employment tribunal decisions do not set precedents, which is why the Acas guidance on holiday pay, as of mid-July 2015, still says "there is currently no definitive case law that suggests voluntary overtime needs to be taken into account".

    Patterson v Castlereagh Borough Council. Mr Patterson, a full-time assistant plant engineer, also did voluntary overtime and claimed this should be included in his holiday pay. The industrial tribunal (as employment tribunals are still called in Northern Ireland) interpreted the Bear Scotland decision as applying only to non-guaranteed overtime, and ruled in November 2014 that the working time directive did not require voluntary overtime to be included in calculating holiday pay.

    The local authority appealed to the Northern Ireland court of appeal (NICA), but conceded that the Bear Scotland judgment had not referred to voluntary overtime, and neither that decision or anything else prevented voluntary overtime from being included in holiday pay.

    Relying on this concession, the NICA ruled on 26 June 2015 that:
    • there is no reason in principle why voluntary overtime should not be included when determining entitlement to paid annual leave;

    • there is no reason to distinguish between compulsory and voluntary overtime;

    • whether it should be included will depend on whether voluntary overtime was appropriately permanent (worked on a sufficiently regular basis) to be part of the worker's normal remuneration.
    The appeal court had been asked only to consider whether voluntary overtime could be included — not whether it should have been included in this specific case.

    Decisions by the Northern Ireland court of appeal do not set a precedent in the rest of the UK, but will be persuasive where there are no existing binding cases on the point. ACAS may, or may not, in due course revise its guidance [see above under Neal v Freightliner] to say "there is currently no definitive case law for England, Wales and Scotland that suggests voluntary overtime needs to be taken into account".

    The NICA decision is at www.bailii.org/nie/cases/NICA/2015/47.html.

    Key cases: Commission
    Lock v British Gas Trading Ltd & another. Mr Lock was a sales consultant whose remuneration was basic pay plus commission on sales (with commission generally paid several weeks or months after a sale was concluded, and accounting for about 60% of his total remuneration). Because he could not work while on annual leave in December 2011 and January 2012, there was no commission and his subsequent pay was less than it would otherwise have been. This is an unusual case, in that he suffered a deferred financial loss, rather than a loss when he actually took annual leave.

    Following the European court of justice decision in Williams v British Airways, which said holiday pay should be comparable to pay when working, Lock claimed his commission should be included in his holiday pay.

    In its judgment in May 2014, the ECJ:
    • confirmed that holiday pay must reflect normal pay, including commission, overtime etc;

    • confirmed the fundamental principle that workers' pay during statutory annual leave must be comparable to normal pay, so they are not deterred from taking annual leave;

    • said national courts must decide how to calculate how much commission should be paid during any period of annual leave, on the basis of a representative reference period;

    • said it was not relevant that British Gas' commission scheme targets were based on 48 weeks' work rather than 52.
    The ECJ judgment is at www.bailii.org/eu/cases/EUECJ/2014/C53912.html.

    The Leicester employment tribunal, which had referred the case to the ECJ, decided in March 2015 that:
    • commission should be included in calculating holiday pay for the four weeks' statutory annual leave under the working time directive;

    • new words should be inserted into reg.16(3) of the working time regulations to make clear that commission and similar payments should be included as remuneration, and that such workers should be treated as workers whose pay varies with the amount of work done, rather than being for a fixed number of hours per week.
    The working time regulations, by reference to s.221 of the Employment Rights Act 1996, use the 12 weeks prior to the start of the worker's holiday as the basis for calculating holiday pay for workers whose pay varies. A further hearing will consider whether this constitutes a representative reference period for the Lock case and other commission-based cases. The ECJ advocate general, in an opinion in January 2014, suggested that 12 months might be more appropriate for calculating average commission.

    Squire Patton Boggs solicitors have a very useful analysis of the issues raised by the tribunal decision, including what might be meant by "commission and similar payments", what constitutes a representative reference period, and the extent to which this decision is specific to this case. The article suggests the burden should be on the employee to prove the link between holiday absence and reduced earnings in the first place, and employers should feel entitled not to take that as read, either at all or at the level claimed for. The article is at tinyurl.com/nkhzvmu.

    But... it was announced on 5 May 2015 that British Gas had appealed against the employment tribunal's decision that the working time regulations can be rewritten to fit with the requirements of the directive.

    In the Bear Scotland decision the employment appeal tribunal, which unlike the employment tribunal sets a precedent, had already said the regulations could be rewritten to make clear that non-guaranteed overtime should be included in holiday pay. British Gas' argument is that the provisions on commission in the working time regulations are different from those on non-guaranteed overtime, so the Bear Scotland decision should not have had any bearing on the Lock case; and in any case the EAT in Bear Scotland was incorrect in concluding that our UK legislation could be interpreted purposively to give effect to EU law.

    So until the employment appeal tribunal hears this case, probably by the end of 2015 ... and it is possibly referred to the court of appeal, which would not hear it until late 2016 or early 2017 ... the position at EU level remains clear: holiday pay must be comparable to workers' normal pay for four weeks of annual leave, to ensure they are not discouraged from taking annual leave. But if British Gas wins its argument that the working time regulations cannot simply be rewritten to reflect the requirements of the working time directive in relation to commission, new legislation will be required, and it will not be retrospective.

    Implications and action
    The implications are complex, and will be different for each employer. Specialist advice is likely to be needed.
    • Every employer should assess its current overtime arrangements and pay and how they are administered; identify other payments that may need to be included in calculating holiday pay, such as commission, shift or other allowances, or expenses payments or allowances for travel time that are more than the actual costs incurred); identify how holiday pay is currently calculated; and identify whether it is calculated differently for different types of worker.

    • Where there are overtime payments, allowances, commission etc, the employer will need to consider how regularly these payments occur, and whether this is likely to be considered frequent enough to be classed as part of normal remuneration.

    • Performance incentives such as a performance-related bonus may also need to be included in the holiday pay calculation, if they are suitably regular.

    • If holiday pay is not currently comparable to normal remuneration, a decision will need to be made about whether to start adjusting it now, or wait until it is clearer what does and doesn't need to be included. However it now appears clear that all suitably regular allowances and overtime payments, even for voluntary (non-compulsory) overtime, will need to be included, so the only real uncertainty appears to be commission. Organisations which pay commission or similar payments may want to take advice about whether to start including it in holiday pay now, or wait months or even years until the Lock v British gas appeal.

    • If holiday pay is going to be adjusted now, a suitable representative reference period will need to be decided. Under the working time regulations this would be the 12 weeks prior to the holiday leave, but the courts have suggested that in some situations a longer period may be more appropriate, especially where overtime is seasonal. Hill Dickinson solicitors, in their commentary on the Patterson v Castlereagh borough council case, have a useful summary of the issues in setting a reference period (tinyurl.com/ne3ve93).

    • Overtime, allowances, commission etc only need to be included for the four weeks/20 days statutory leave under the EU working time directive. The new decisions do not require them to be included in pay for the additional 1.6 week/eight days statutory leave under the UK working time regulations, but it may be administratively easier to include them for the full 28 days leave rather than having two levels of pay for statutory leave.

    • For workers who receive contractual holiday, above the statutory 28 days minimum, a decision may also need to be made about whether overtime etc payments should be included in holiday pay for these days.

    • Employment contracts and policies should, if necessary, be updated.

    • Assess potential liability for backdated holiday pay. Where claims were brought before 1 July 2015 and have been stayed by the tribunal pending the various appeals, liability could potentially go back to 1998 when the working time regulations came into force, or any time since then when the worker's employment started. For claims brought on or after 1 July 2015 the maximum period is two years. Employers concerned about potential liability will need advice on how to assess this, the potential impact on reserves, how to show the potential liability in the accounts, and whether and when to try to negotiate a settlement.

    • An employer who has taken on staff under TUPE since 1 July 2013 (two years before the new rules on backdating claims came into force on 1 July 2015) though a merger, outsourcing or other transfer of staff, or is considering doing so in future, should consider whether liability for underpayment of holiday pay could transfer.

    • Similarly, an employer who has transferred staff under TUPE should consider whether they could be held liable for holiday pay while they were still the employer.

    • If a worker's pensionable earnings include overtime, commission etc, backdated holiday pay could potentially have an effect on pension contributions to a defined contribution scheme, or on benefits in a defined benefit scheme.
    Potential nightmare.

    For summaries and articles about cases, do a Google search on key words in the case name or content.
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    STATUTORY SICK PAY

    Updated 15/5/16. This information updates s.31.6.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    For sickness absence on or after 6 April 2016, the earnings threshold remains £112 per week (unchanged from 2015-16) and the statutory sick pay rate remains £88.45 per week. Details, including daily rates based on the number of qualifying days in the week, are in the employer's guide to SSP via tinyurl.com/oby5hp3.

    Employees earning less than the earnings threshold or not eligible for SSP for other reasons may be entitled to employment and support allowance.

    The current SSP rate is in the Welfare Benefits Up-rating Order 2015, at www.legislation.gov.uk/uksi/2015/30/made. The earnings threshold is in the Social Security (Contributions)(Limits and Thresholds)(Amendment) Regulations 2015 at www.legislation.gov.uk/uksi/2015/577/contents/made.

    In the olden days, an employer could recover from the government all the statutory sick pay it paid to employees. This provision was replaced in 1995 with the SSP percentage threshold scheme, under which SSP could be recovered from HM Revenue & Customs if the employer paid in any tax month SSP that was more than 13% of the employer's and employees' combined class 1 national insurance contributions for that month.

    The percentage threshold scheme was abolished from 6 April 2014, and employers cannot now recover any SSP paid for sick days on or after that date. However, employers could still recover, until 5 April 2016, any SSP, regardless of when paid, that they would have been eligible to recover for days of incapacity before 6 April 2014. This recovery provision has now ended.

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    RIGHTS OF MILITARY RESERVISTS AND THEIR EMPLOYERS

    Updated 23/7/15. This information updates s.31.7.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Where an employee who is a member of the reserve forces is called up for service, the employer is entitled to financial awards to cover costs including recruiting and training a replacement and retraining the reservist when he or she returns to work. The maximum award is £110 per day.

    From 1 October 2014, for each full month a reservist is absent from work, an employer with no more than 250 employees and annual turnover not more than £25.9 million is also entitled to claim an additional payment of up to £500 per month. The amount is reduced pro rata for part months or part-time workers.

    From 27 March 2015:

    • an employer, regardless of size, can claim for five days of handover costs before their reservist employee is mobilised and five days after they return to work;
    • an employer can reclaim up to 75% of the costs, to a maximum of £300, for purchasing specialist clothing for a person who replaces a reservist during a period of mobilisation;;
    • an employer can claim up to £2,000 of the costs of training necessary for a reservist's replacement during mobilisation, to ensure they are as effective as possible in the role.

    Information about financial assistance for employers of reservists is available from SaBRE via tinyurl.com/nxp7cwn.

    The Reserve Forces (Payments to Employers and Partners) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/2410/contents/made.
    The Reserve Forces (Call-out and Recall)(Financial Assistance)(Amendment) Regulations 2015 are at www.legislation.gov.uk/uksi/2015/460/made.

    Regardless of the length of military service, reservists who apply to return to work must be offered the same occupation on terms and conditions no less favourable than they would be entitled to if they had not done military service. If this is not reasonable and practicable, the reservist must be offered "the most favourable occupation and on the most favourable terms and conditions which are reasonable and practicable".

    Employees who are re-employed after military service have a protected period of employment of between 13 and 52 weeks, depending on how long they were employed by the employer prior to call-up. During this period they can be dismissed only if it becomes unreasonable or impractical for the employer to continue to employ them on the same terms. Since 1 October 2014, there is no longer a two-year qualifying period to claim unfair dismissal for a reason connected with being a member of a reserve force.

    The Reserve Forces (Safeguard of Employment) Act 1985 is at www.legislation.gov.uk/ukpga/1985/17/contents.
    The two-year qualifying period is removed by s.48 of the Defence Reform Act 2014, which is at www.legislation.gov.uk/ukpga/2014/20/contents.

    Information about the rights and responsibilities of employers and reservists, and of reservists as employees, is available from SaBRE at www.sabre.mod.uk, helpline 0800 349 5459.

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    RIGHT TO REQUEST
    TIME OFF FOR TRAINING


    Updated 23/7/15. This information updates s.31.8.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Since 6 April 2010, most employees in organisations based in England, Wales or Scotland with 250 or more employees have had a statutory right to request time off for training that would benefit them and the employer. The right was expected to be extended to all employees the following year, but the Department for Business, Innovation and Skills announced in 2011 that this would not happen at least until April 2015, and it seems to have quietly disappeared.

    Where an employer has more than 250 employees, the right does still apply. It is similar to the right to request flexible working. The time off does not have to be paid if the training is "off the job" (as opposed to on the job training), and employers are not obliged to contribute to the cost of the training. The right applies only to employees who are over 18, with more than 26 weeks’ continuous service with the employer at the time of making the request. Workers aged 16-18, in any size employer, have a separate right to study or training.

    Basic information is on the Gov.uk website via tinyurl.com/pyunjcj.
    More detailed information is on the MyLawyer website via tinyurl.com/pftsrar.

    The time to train legislation is ss.63D-63K of the Employment Rights Act 1996, inserted by s.40 of the Apprenticeships, Skills, Children and Learning Act 2009 at www.legislation.gov.uk/ukpga/2009/22/contents.

    The detailed rules are in the Employee Study and Training (Procedural Requirements) Regulations 2010 at www.legislation.gov.uk/uksi/2010/155/made
    and the Employee Study and Training (Eligibility, Complaints and Remedies) Regulations 2010 at www.legislation.gov.uk/uksi/2010/156/made.

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    MANAGING BEREAVEMENT IN THE WORKPLACE

    Added 4/10/15. This information updates s.31.8.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Despite a campaign for bereaved parents to have a statutory right to five days bereavement leave, there is no such right. Leave for any bereavement — not just for parents — therefore generally depends on what the contract says, if anything, about such leave; or the employer's policy on compassionate leave, if there is one; or the employer's attitude to such leave in any given situation.

    As well as the practical issue of time off, there is an equally important issue about how managers and colleagues relate to the bereaved colleague, or how they respond to the death of a colleague.

    To help employers deal with these situations, Acas published its Managing bereavement in the workplace guidance in September 2014. Prepared with Cruse Bereavement Care and other organisations, it covers the legal background; good practice when managing bereavement in the workplace (including the death of colleagues); avoiding discrimination and addressing bullying; useful links; and a model bereavement policy.

    The press release announcing the guidance summarises it as:

    • Grief does not have predicted stages and phases. Everyone reacts differently to bereavement and this should be understood and respected by both employers and colleagues.

    • Employers can prepare for managing bereavement in the workplace by having a clear policy on it and training managers, HR teams and selected staff to have compassionate and effective conversations with bereaved colleagues. It is good practice to involve trade unions or staff representative in developing a bereavement policy.

    • A calm empathetic approach in all communications from managers will ensure employees feel supported and minimise their anxiety about returning to work.

    • Some employees may feel able to return to work very swiftly, whilst others may need more time. The relationship with the person who died and the circumstances of the death will all have an impact on the employee, particularly if the death was sudden or traumatic.

    • It is often difficult for bereaved employees to judge how they will feel in the workplace and a swift return to work does not necessarily mean that an employee will not need support.

    • There are likely to be ups and downs as a person suffering from grief adjusts to life without the person they lost. The full emotional impact of the bereavement may not be felt for some time after a death.

    • Employers need to be mindful of the family unit of the bereaved and appreciate that in many cases, a flexible approach such as offering part-time hours or flexible working is more likely to support and retain the employee and minimise sick days as they negotiate new or increased caring responsibilities.
    The press release at www.acas.org.uk/index.aspx?articleid=4976 includes a link to the 24-page guidance.

    Eversheds LLP have a short article summarising the law and the Acas guidance at tinyurl.com/q5s6u46.

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    PARENTS AND CARERS


    STATUTORY MATERNITY, PATERNITY AND ADOPTION LEAVE AND PAY

    Updated 15/5/16. This information updates ss.32.2 to 32.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Statutory maternity pay (SMP) is 90% of the woman's weekly earnings for the first six weeks of maternity leave. For the remaining 33 weeks of the 39-week SMP period, SMP is a flat weekly rate or 90% of average weekly earnings, whichever is less. For complete pay weeks starting on or after 5 April 2016, the flat rate remains £139.58, the same as in 2015-16.

    Since 5 April 2015, statutory adoption leave and pay have been aligned with maternity entitlements. The requirement for 26 weeks continuous employment to be eligible for statutory adoption leave was removed, and statutory adoption pay (SAP), like SMP, is now 90% of the employee's weekly earnings for the first six weeks of leave. The requirement for 26 weeks continuous employment for adoption pay (as for maternity and paternity pay) remains in place.

    Surrogate parents are also eligible for adoption rights, where they are, or expect to be, parents of a child under a parental order, and the child's expected week of birth starts on or after 5 April 2015.

    For complete pay weeks starting on or after
    5 April 2016, shared parental pay (ShPP) and ordinary and additional statutory paternity pay (OSPP and ASPP) remain £139.58 per week (the same as in 2015-16), or 90% of the employee's average weekly earnings, whichever is less.

    From 5 April 2016 the earnings threshold for eligibility for SMP, ShPP, SPP and SAP remains £112 per week (the same as in 2015-16).

    An employer who paid, or was liable to pay, gross class 1 national insurance contributions of £45,000 or less in the previous tax year can recover 100% of the SMP, ShPP, SPP or SAP, plus 3% compensation. Employers who do not qualify for this small employer relief can recover 92%.

    Where the expected week of birth starts on or after 5 April 2015 or a child is placed for adoption on or after that date, maternity pay can be shared [see Shared parental leave].

    Comprehensive lists of HMRC publications for employers and employees, including forms, detailed guidance and a maternity and paternity calculator, can be accessed on Gov.uk via:

    Other information is available from: The rates since 5 April 2015 are in the Welfare Benefits Up-rating Order 2015, at www.legislation.gov.uk/uksi/2015/30/made. The earnings threshold is in the Social Security (Contributions)(Limits and Thresholds)(Amendment) Regulations 2015, at www.legislation.gov.uk/uksi/2015/577/contents/made.

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    EUROPEAN DRAFT DIRECTIVE ON MATERNITY RIGHTS

    Updated 28/1/15. This information updates ss.32.2 to 32.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Maternity rights throughout the European Union are derived from the Pregnant Workers Directive of 1992 (92/85/EEC). In 2010 the European Parliament adopted a draft directive, referred to by some as the maternity leave directive, which would increase the minimum period of maternity leave to 20 weeks on full pay, extend provisions for job protection for women on maternity leave, extend maternity rights to domestic workers and adoptive mothers, and provide for two weeks paternity leave on full pay.

    Following lack of progress by the EU Council of Ministers, the European Commission, as part of its regulatory fitness and performance programme (REFIT), said on 18 June 2014 that the draft directive — along with other proposals that are not getting anywhere — "should be suggested for withdrawal".

    Following this, many commentators reported that the draft directive had actually been withdrawn. This is not the case. Mary Honeyball, MEP for London, said in an email on 28 January 2015, "The directive is indeed under threat of being withdrawn under the REFIT programme. However, this would not happen until after May. The European Commission's work programme for 2015 includes a six-month sunset period within which a breakthrough in negotiations must be achieved. So, at the the moment, the trajectory is not very clear but we do hope to keep this on the agenda and reach a resolution within the coming months."

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    SHARED PARENTAL LEAVE AND PAY

    Updated 27/1/15. This information updates ss.32.2, 32.3 & 32.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Shared parental leave (SPL) and shared parental pay (ShPP) were introduced on 1 December 2014, for employees with a child due to be born or placed with them for adoption on or after 5 April 2015. The provisions for England, Wales and Scotland are set out in the Children and Families Act 2014 and related regulations; similar legislation for Northern Ireland also came into effect on 5 April 2015 [see end of this article].

    In summary, eligible employed parents can share between them a maximum of 52 weeks statutory shared parental leave and 39 weeks shared parental pay (but as before, the first two weeks, or in some cases four weeks, after the birth must be taken by the mother). The government announced on 5 October 2015 that from
    2018, the leave could be shared instead with an eligible employed grandparent of the child [see (Grand)parental leave, below].

    The regulations for shared parental leave and pay set out extremely complex eligibility and procedural requirements for the shared entitlements (and this is before grandparents start to be factored in). I would normally summarise the rules here, but there is such a high risk of getting them wrong or leaving out something crucial that it is better to refer you to other sources, especially ACAS. Resources include:

    • From ACAS: a summary of key points, plus a much more detailed good practice guide for employers and employees, a summary of the process, sample policy and letter templates, and details of ACAS training on shared parental leave, all via www.acas.org.uk/index.aspx?articleid=4911.

    • Basic information about shared parental leave and pay on the Gov.uk website for employees at tinyurl.com/ovoyqvh, and for employers at tinyurl.com/q5jgs8w.

    • A more detailed technical guide for employers on the Gov.uk website, at tinyurl.com/m3ju2om.

    • An interactive website for calculating entitlement to maternity, paternity and/or shared parental leave and pay on the Gov.uk website at www.gov.uk/pay-leave-for-parents.

    • Leave and pay for mothers and Leave and pay for fathers and partners booklets from the Trades Union Congress (TUC), covering not only leave and pay for parents but also flexible working, unpaid parental leave and emergency time off for dependants, at www.tuc.org.uk/node.121636 for mothers and www.tuc.org.uk/node/121639 for fathers and partners.
    DLA Piper solicitors say, "No one is expecting an immediate rush of requests and it is anticipated that employee use of the new rights will gradually increase over the coming years. Our recommendation is that, as a starting point, [employers] should prepare by putting relevant policies in place (for example, a revised maternity policy and a shared parental leave and pay policy; by producing notification forms for their employees to use; and by producing guidance for managers on handling requests for shared parental leave."

    Below is a summary of some of the key points.

    Timing of shared parental leave. Unlike additional paternity leave which has been in place since April 2011 and can only be taken if the mother has returned to work after 20 weeks without taking all of her maternity leave entitlement, shared parental leave can be taken by both parents at the same time. Research published by the Trades Union Congress in June 2013 showed that less than 1% of fathers eligible to take additional paternity leave did so. Additional paternity leave has now been abolished and replaced by shared parental leave, except in relation to babies due before 5 April but born after.

    Unlike maternity, paternity and adoption leave, shared parental leave does not need to be taken in a single block. It can be taken in up to three blocks, each of one week or more, or more blocks if the employer agrees. There are specific rules on when an employer has to agree a request and when they can refuse to grant it, so it is important for both employers and employees to understand these.

    The cut-off point for taking shared parental leave is one year from the child's birth or adoption date.

    Entitlement. Shared parental leave and pay are available only to employees who meet the eligibility criteria, and who comply with the notice requirements. As indicated above these are not straightforward — so it is essential that employers and employees understand these, and employers adapt their policies and procedures accordingly. ACAS [see above] has a model policy and a summary of procedures.

    Notice. Mothers who intend to opt into shared parental leave (i.e. opt out of maternity leave) must give binding notification to the employer of their eligibility and intention to end maternity leave and take shared parental leave. However, during the six weeks after the birth, mothers who gave notice prior to the birth can revoke the notice.

    The notice period for an employee to notify a specific period of leave is eight weeks, including a two week discussion period. There is a cap of three notifications or changes (the original notice and two more) for periods of leave to be taken, but employers can choose to accept notifications or changes beyond the cap, by mutual agreement with the employee.

    Adoptive parents, foster-to-adopt, surrogacy arrangements. Entitlements for adoptive parents are similar to those for birth parents, but there are some differences and it is important that policies and procedures reflect these. Adoption leave and pay are also available for intended parents in surrogacy arrangements and for parents in foster-to-adopt arrangements.

    Changes to contractual entitlement? Employers who provide contractual maternity, paternity and adoption provisions beyond the statutory minimum will need to consider whether and how these should be revised to take account of the new entitlements. In particular, if women on maternity leave are entitled to enhanced (contractual) maternity pay while on maternity leave, employers should ensure consistency with what is offered to men who are on shared parental leave.

    Pensions. Baker & McKenzie solicitors have pointed out that shared parental leave should be treated for pension purposes in the same way as maternity leave, with pension provision during paid shared parental leave being based on the pay the employee would be likely to have received if working normally. For more about this, see the article in the Baker & McKenzie November 2014 pensions update, which can be accessed via tinyurl.com/l8cf6dr.

    In touch days. While on shared parental leave each parent has up to 20 "shared parental leave in touch" (SPLIT) days when they can work for the employer without affecting entitlement to leave, so they could in effect work on a part-time basis while on SPL. These SPLIT days are separate from the 10 keeping in touch (KIT) days a mother will continue to have while on maternity leave.

    Right to return. The right to return to the same job is maintained for employees returning from any period of leave that includes maternity, paternity, adoption and shared parental leave and totals 26 weeks or less in aggregate, even if the leave is taken in discontinuous blocks. If the total leave is more than 26 weeks the employee has a right to return to the same job, or if that is not reasonably practicable, a similar job.

    Legislation. The Children and Families Act 2014 is at www.legislation.gov.uk/ukpga/2014/6/contents/enacted. The shared parental leave provisions are in part 9 (ss.131-134).

    The main regulations are the Shared Parental Leave Regulations 2014 at www.legislation.gov.uk/uksi/2014/3050/made, the Statutory Shared Parental Pay (General) Regulations 2014 at www.legislation.gov.uk/uksi/2014/3051/made, and the Statutory Shared Parental Pay (Administration) Regulations 2014 at www.legislation.gov.uk/uksi/2014/2929/made.

    Other regulations cover shared parental leave and pay in relation to adoptions, adoptions from abroad, parental order cases and employees abroad, and amend existing regulations on maternity, paternity and adoption pay and leave.

    The introduction of shared parental leave and pay follows the government's "modern workplaces" consultation from May to August 2011, a further consultation from February to May 2013 on administrative arrangements for shared parental leave and pay, and the government's response to this consultation on 29 November 2013.

    Northern Ireland. In Northern Ireland, where employment law is a devolved matter, the Northern Ireland Executive consulted from 6 June to 23 August 2013 on whether to introduce similar provision. The consultation led to the Work and Families Act which was approved by the Northern Ireland Assembly on 2 December 2014 and is in effect for births and adoptions from 5 April 2015. It is at www.legislation.gov.uk/nia/2015/1/contents/enacted.

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    (GRAND)PARENTAL LEAVE AND PAY

    Added 5/10/15. This information updates ss.32.2, 32.3 & 32.4 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The government announced on 5 October 2015 that from 2018, shared parental leave and pay will be able to be shared with the child's father or the mother's partner, as at present, or instead with a grandparent of the child. To be eligible, the grandparent will need to be employed, presumably meeting the same employment criteria as a father or partner would have to.

    The government intends to consult on the details in the
    first half of 2016.

    Under current rules, the mother must share the primary responsibility for caring for the child with the father or partner with whom her leave will be shared. If this "primary responsibility" criterion is to apply to a grandparent, it implies that only mothers who do not share primary responsibility with the father/partner will be able to share with a grandparent. The consultation will presumably look at whether the criterion for sharing with a grandparent should be less restrictive than for a father/partner.

    The government's press release mentions only mothers, so the consultation may look at whether this shared leave is also available to adopters — or adopters may automatically be included in the detailed proposals.

    It also mentions only grandparents. Why not the child's aunt, uncle or other relative who is in a position to help regularly with childcare?

    The government's intentions are to "increase flexibility and choice in parental leave arrangements and support working parents with the costs of childcare during the first year of a child's life [and] provide flexibility in working arrangements for grandparents without fear of losing their job".

    Its proposal differs from the Labour party's manifesto promise of "granny leave". This would have given grandparents the right to share the 18 weeks of unpaid leave, or four weeks in any year, that parents can already take for each child and adopted child up to their 18th birthday.

    The government's press release about shared leave for grandparents is at tinyurl.com/nr42b6w.

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    TIME OFF FOR FATHERS/PARTNERS/ADOPTERS FOR ANTENATAL/PRE-ADOPTION APPOINTMENTS

    Updated 19/10/14. This information adds a new section to s.32.3 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 1 October 2014, the Children and Families Act 2014 [see item above] creates a new right for employees and qualifying agency workers to take unpaid time off work to accompany a pregnant woman to up to two antenatal appointments. Employees have this right from day one; agency workers, to qualify, must have at least 12 weeks service with the same hirer. The antenatal appointment must have been made on the advice of a registered doctor, midwife or nurse.

    The right is available to the pregnant woman's husband, civil partner or partner; a person living with the woman in an enduring family relationship who is not a relative; the father or parent of the pregnant woman's child; and a person who is an potential applicant in relation to a child expected to be born to a surrogate mother.

    The maximum time off for each antenatal appointment is 6.5 hours. This is calculated to include travel and waiting time.

    The employer can ask for a declaration confirming the person's relationship to the pregnant woman, stating the date and time of the appointment, and confirming that the purpose of the time off is to accompany the woman to the appointment and that the appointment was made on the advice of a health professional. The employer cannot, however, ask for evidence of the appointment, because this is considered to be the property of the pregnant woman.

    An employer is entitled to refuse to give time time off if this is reasonable, but the legislation does not provide guidance about this. Such cases will be decided in the employment tribunal.

    On the other hand employers can, of course, agree to pay for this leave, and/or to allow for more time off than the statutory amount.

    The fact that the partner/father has the right to time off from their job to accompany a pregnant woman does not mean that she has to agree to be accompanied; she has the right to refuse this.

    From 5 April 2015, primary adopters are entitled to paid time off to attend five pre-adoption appointments, and secondary adopters can take unpaid time off to accompany them to two pre-adoption appointments. This mirrors maternity arrangements, where the mother's time off to attend antenatal appointments is paid, but her partner/the father is entitled only to unpaid time off.

    Guidance for employers on the right of employees and agency workers to accompany a pregnant woman to antenatal appointments, issued on 8 September 2014, is on the Gov.uk website via tinyurl.com/ngfzwv3.

    Squire Patton Boggs solicitors have an interesting commentary on the guidance, noting that it covers situations such as what happens when a man is simultaneously expecting with two different women or where the husband and the father are different people — but does not cover more common questions an employer might actually have. The article can be accessed via tinyurl.com/nr2hgfm.

    The Children and Families Act 2014 is at www.legislation.gov.uk/ukpga/2014/6/contents/enacted. The provisions on antenatal and adoption appointments are in part 8 (ss.127-130).

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    EXTENSION OF UNPAID PARENTAL LEAVE

    Updated 22/4/15. This information updates s.32.7 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 5 April 2015, the right to unpaid leave to care for their child is extended to parents of all children under 18, not just children who are disabled.

    Previously, under the Maternity and Parental Leave etc Regulations 1999, a parent with one year's continuous service with the employer was entitled to 13 weeks unpaid parental leave, to be taken before the child's fifth birthday or within five years of the child being placed for adoption, or 18 weeks leave to be taken before the child's 18th birthday if the child is entitled to disability allowance. In March 2013 the 13 week period was extended to 18 weeks.

    Apart from the cut-off date no longer being the child's fifth birthday or fifth anniversary of adoption, the rules basically remain unchanged and are explained at www.gov.uk/parental-leave. These include that the leave is per child (so if there are two working parents and they have three children, each parent is entitled to 18 weeks for each child), the notice period that must be given, valid reasons for an employer to postpone the leave, and the maximum of four weeks per child that can be taken in any one year unless the employer agrees it can be more.

    Parents with children between five and 18, who prior to 5 April 2015 would not have been entitled to the leave, can now take four weeks per year per child, to the maximum of 18 weeks per child.

    The Maternity and Parental Leave etc (Amendment) Regulations 2014, bringing in this change, are at www.legislation.gov.uk/uksi/2014/3221/made.

    Unpaid parental leave should not be confused with shared parental leave, which is available for parents of children whose expected date of birth is on or after 5 April 2015 or where a child is placed for adoption on or after this date. This is paid (if the parent has 26 weeks continuous employment) and has to be taken within a year after the child's birth or adoption.

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    WHISTLEBLOWING


    CHANGES TO WHISTLEBLOWING LAW

    Updated 28/8/13. This information updates s.33.5 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Under ss.43A-43L of the Employment Rights Act 1996, inserted by the Public Interest Disclosure Act 1998 (PIDA), a worker who reveals information about an employer that would normally be confidential (whistleblowing) is protected against victimisation or dismissal, provided the worker reasonably believes the disclosure tends to show one or more of six categories, and it is made through a protected route. The categories are criminal offence, failure to comply with any legal obligation, miscarriage of justice, danger to an individual's health or safety, damage to the environment, or deliberate concealment of information tending to show any of these. Protected routes include the employer, a legal advisor, or prescribed bodies such the Charity Commission, Health & Safety Executive, HMRC, Environment Agency etc.

    Other routes, such as through the media, are generally protected only if the worker has already made the disclosure to their employer or a prescribed body, or if the worker reasonably believes that making the disclosure to their employer or a prescribed body would lead to the employer taking action against them, or where there is no prescribed body and the worker reasonably believes that a disclosure to the employer would lead to the employer concealing or destroying evidence.

    Disclosure of information is not protected if the worker does not reasonably believe it shows or tends to show one of the six categories, or it is not made through a protected route.

    Change in definition of protected disclosure and in liability of employer
    From 25 June 2013, ss.17-20 of the Enterprise and Regulatory Reform Act 2013 further amend the Employment Rights Act 1996 to change aspects of whistleblowing law. The definition of whistleblowing is amended so that the worker not only has to reasonably believe the disclosed information tends to show one or more of the six categories, but also reasonably believes it is made in the public interest. Unlike other employment-related provisions in the Enterprise and Regulatory Reform Act, the government did not carry out any consultation on this change.

    The change in legislation was necessary because the employment appeal tribunal found in Parkins v Sodexho that an employer's breach of an individual's contract of employment is a failure to comply with a legal obligation, and therefore disclosure of a contractual breach could be protected. There have been concerns that since this 2001 decision, PIDA is being abused, in particular by City bankers using it to claim that disclosures about their bonus payments are protected disclosures. The intention of the new legislation is to exclude protection where the disclosure is about a breach of an individual's employment contracts or a breach of other legal obligations which do not involve issues of a wider public interest.

    The statutory requirement for the disclosure to have been made in good faith in order to be protected will be removed, so disclosures made in bad faith (motivated primarily by money or spite, rather than a desire to put right a wrong) are now protected. But tribunals will be able to reduce the compensatory award by up to 25% if it appears to the tribunal that the protected disclosure was not made in good faith.

    In addition, an employer is vicariously responsible for detriment caused to the whistleblower by another worker or an agent of the employer, even if the employer did not know or approve of the detriment, unless the employer can show that it took all reasonable steps to prevent the other worker from acting in that way. This change follows a case in October 2011 where the court of appeal said that because there is nothing in the legislation to make it unlawful for employees to victimise whistleblowers, an employer could not be held vicariously liable for such actions. This decision, in NHS Manchester v Fecitt, is at www.bailii.org/ew/cases/EWCA/Civ/2011/1190.html.

    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted. The Department for Business, Innovation and Skills has a summary at tinyurl.com/kqdxmg3.

    Call for evidence on whistleblowing law
    Following the introduction of the above changes on 25 June 2013, the government announced a call for evidence from 12 July to 1 November 2013 on whether the whistleblowing framework is operating effectively and whether further protection is needed for whistleblowers. Information about the call for evidence can be accessed via tinyurl.com/npllkoa.

    Post-employment disclosures
    The employment appeal tribunal ruled in January 2013 that whistleblowers are protected against detriment for a protected disclosure made after the employment relationship has ended, as well as during employment. Detriment could include, for example, failure to provide a reference. The decision in Onyango v Berkeley Solicitors is at www.bailii.org/uk/cases/UKEAT/2013/0407_12_2501.html.

    Decisions in previous cases have confirmed that whistleblowing legislation covers post-employment detriment in relation to a protected disclosure made during employment, where employment has ended as a result of the disclosure; and detriment by a current employer based on a protected disclosure made during previous employment.

    Experience of whistleblowers
    Public Concern at Work (www.pcaw.org.uk) is a charity which provides information and advice about all aspects of whistleblowing. It published in May 2013 a report on the experiences of 1,000 whistleblowers. This showed that:

    • 83% of workers blow the whistle at least twice, usually internally;
    • 15% of whistleblowers raise a concern externally;
    • 74% of whistleblowers say nothing is done about the wrongdoing;
    • 60% of whistleblowers receive no response from management, either negative or positive;
    • the most likely response is formal action (disciplinary or demotion) (19%);
    • 15% of whistleblowers are dismissed;
    • senior whistleblowers are more likely to be dismissed;
    • newer employees are most likely to blow the whistle, with 39% having less than two years' service.
    A summary of the report is at www.pcaw.org.uk/whistleblowing-the-inside-story.

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    DISMISSAL


    QUALIFYING PERIOD TO CLAIM UNFAIR DISMISSAL

    Added 11/3/12. This information updates ss.34.8.2 & 26.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 6 April 2012, the qualifying period to claim unfair dismissal was extended from one year to two years. This applies only to employees whose qualifying period starts on or after 6 April 2012 — so anyone employed by the employer on 5 April 2012 remains able to claim unfair dismissal after only one year.

    The right to request a written statement of reasons for dismissal was also extended from one year to two years for employees who start on or after 6 April 2012.

    Claims for unfair dismissal where there is no qualifying period, for example where the dismissal is for a reason based on unlawful discrimination, continue to be able to be made from day one.

    The Unfair Dismissal and Statement of Reasons for Dismissal (Variation of Qualifying Period) Order 2012 is at www.legislation.gov.uk/uksi/2012/989/made.

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    DISMISSAL ON GROUNDS OF POLITICAL OPINIONS OR AFFILIATION

    Updated 17/6/13. This information updates ss.34.8.2 & 26.5.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    From 25 June 2013, an employee can claim unfair dismissal from day one of employment, instead of needing to have worked for a qualifying period of two years or in some cases one year, if the reason or principal reason for the dismissal relates to the employee's political opinions or affiliation.

    This change was made by s.13 in the Enterprise and Regulatory Reform Act 2013, which amends s.108 of the Employment Rights Act 1996 (qualifying period of employment). The Enterprise and Regulatory Reform Act is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    For an explanation of the reasons for the change, see www.sandy-a.co.uk/equality.htm#dismissal-politicalbelief.

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    UNFAIR DISMISSAL AWARDS

    Updated 24/4/16. This information updates s.37.4.2 in The Russell-Cooke Voluntary Sector Legal Handbook.
    England, Wales and Scotland. For unfair dismissals in England, Wales and Scotland taking effect on or after 6 April 2016, the maximum compensatory award for unfair dismissal is increased from £78,335 to £78,962, or 52 weeks' of the employee's normal pay, whichever is lower. Normal pay in this context is as defined in s.221 of the Employment Rights Act 1996. It is not "weekly pay" as defined for calculating redundancy pay and some other statutory entitlements.

    The compensatory award is intended to compensate employees for loss of earnings. The maximum does not apply in discrimination and whistleblowing cases, where there is no cap.

    For basic awards, the maximum is increased from £14,250 to £14,370 from 6 April 2016. The minimum basic award for unfair dismissal on grounds of health and safety, trade union involvement, serving as an employee representative or occupational pension scheme trustee, or other reasons that are automatically unfair is increased from £5,807 to £5,853.

    Where notice of dismissal has been given before 6 April 2016 but the notice period expires on or after 6 April, the new amounts apply. Where pay in lieu of notice has been given before 6 April, the effective date of dismissal is the date the actual dismissal takes effect, plus the statutory period of notice (one week's notice per year of employment, to a maximum of 12 weeks). If this would take the effective date of dismissal to 6 April or later, the new amounts apply.

    The changes on 6 April 2016 reflect the retail prices index (RPI) increase in September 2015.

    The Employment Rights (Increase of Limits) Order 2015, covering events taking place on or after 6 April 2015 in England, Wales and Scotland, is at www.legislation.gov.uk/uksi/2016/288/made.
    The Employment Rights (Increase of Limits) Order 2015, covering events taking place between 6 April 2015 and 5 April 2016, is at www.legislation.gov.uk/uksi/2015/226/made.

    Northern Ireland. The formula for calculating changes in the amounts is different in Northern Ireland, and changes take effect from a different date. From
    14 February 2016 the maximum compensatory award in unfair dismissal claims is increased from £78,400 to £79,100, and the maximum basic award is increased from £5,700 to £6,000.

    These and other awards are in the Employment Rights (Increase of Limits) Order (Northern Ireland) 2016, at www.legislation.gov.uk/nisr/2016/37/made.
    Awards for events taking place between 22 March 2016 and 13 February 2016 are in in the Employment Rights (Increase of Limits) Order (Northern Ireland) 2016, at www.legislation.gov.uk/nisr/2015/169/made.

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    REDUNDANCY


    CHANGES TO COLLECTIVE REDUNDANCY CONSULTATION RULES

    Updated 14/4/13. This information updates s.35.2.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 came into force on 6 April 2013, affecting redundancies where a proposal to make 100 or more people redundant occurs on or after that date. This follows the government's "red tape challenge" on employment-related regulations in October 2011, a call for evidence on collective redundancy consultation from 23 November 2011 to 31 January 2012, and a Department for Business, Innovation and Skills consultation on its proposals from 21 June to 19 September 2012.

    The changes are:

    • where it is proposed that there will be 100 or more redundancies within a period of 90 days or less, the minimum period for consultation with trade unions or workplace representatives is reduced from 90 to 45 days;
    • employees on fixed term contracts (a contract with an expiry defined as a specific date, or on completion of a specific task, or the occurrence or non-occurrence of a specified event) do not need to be included in the collective redundancy procedure, unless the employer is planning to dismiss the employee as redundant and the dismissal will take effect before the expiry of the fixed term contract;
    The 30-day consultation period for 20-99 potential redundancies has not been changed, nor have the provisions for protective awards, under which each employee affected by an employer's failure to consult as required is entitled to 90 days' pay from the employer.

    Acas issued on 6 April 2012 a new, non-statutory code of practice setting out how to conduct good quality redundancy consultations and deal with contentious issues. It covers what collective redundancy is, when consultation should start, what is meant by an establishment, how to determine how many employees are involved, who to consult, what information should be provided, how consultation should be conducted, how long consultation should last, how to carry out individual consultation, when dismissal takes effect, rights of redress, and specific issues around insolvency and TUPE.

    How to manage collective redundancies is at www.acas.org.uk/index.aspx?articleid=4299.

    The Trade Union and Labour Relations (Consolidation) Act 1992 (Amendment) Order 2013 is at www.legislation.gov.uk/uksi/2013/763/made.

    Comparable legislation is not yet in place in Northern Ireland and may not be introduced at all, which means that an employer anticipating large scale redundancies affecting employees in both Northern Ireland and the rest of the UK may still need to have a 90-day consultation period.

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    STATUTORY REDUNDANCY PAY

    Updated 15/5/16. This information updates s.35.7.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    For employees in England, Wales and Scotland, the maximum weekly pay for calculating statutory redundancy pay is increased from £475 to £479 for redundancies taking effect on or after 6 April 2016.

    For employees in Northern Ireland, where different rules apply to the calculation of "weekly pay", the maximum weekly pay for calculating statutory redundancy pay is increased from £490 to £500 for redundancies taking effect on or after
    14 February 2016.

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    EMPLOYMENT DISPUTES AND CLAIMS


    EARLY CONCILIATION IN EMPLOYMENT DISPUTES

    Updated 17/5/14. This information adds a new section on early conciliation to s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Early conciliation, a new process brought in by ss.7-9 of the Enterprise and Regulatory Reform Act 2013, started to be provided by Acas on6 April 2014. Notification to Acas before lodging an employment tribunal claim became a statutory requirement for the majority of claims lodged on or after 6 May 2014.

    "Relevant proceedings" which require early conciliation are unfair dismissal, workplace discrimination, equal pay, redundancy payments, redundancy selection, unlawful deduction from wages, unpaid notice/holiday pay, and rights to time off or flexible working. Prospective claims on these matters now have to be notified initially to Acas, before they can be lodged with the employment tribunal.

    The prospective claimant does this by submitting a completed early conciliation form to Acas online or by post, or by ringing Acas and having them fill in the form. At this stage the form requires only the potential claimant's and respondent's contact details, with no information about the nature of the claim. Where there is more than one potential respondent, the claimant has to submit a separate form for each respondent.

    An early conciliation support officer (ECSO) contacts the claimant and asks for basic information about the claim, such as length of employment and the date of dismissal or the relevant incident. The ECSO explains what conciliation is, and provides information about length of service requirements for bringing a claim, tribunal procedures, tribunal fees etc. If the claimant decides at this stage not to proceed with their claim or with early conciliation, Acas issues an early conciliation certificate to the claimant. This is evidence that the claimant has complied with the requirement to contact Acas.

    If the claimant decides to carry on, the ECSO transfers the case to an Acas conciliator, who will ask whether the claimant wishes to settle the dispute. If the answer is yes, the conciliator contacts the respondent and asks if they are also willing to discuss the matter. Conciliation can proceed only if both the claimant and the respondent agree. If they don't, an early conciliation certificate is issued to the claimant.

    The conciliator must "endeavour to promote a settlement", but cannot advise on the merits of the claim. Discussions between the claimant and respondent are without prejudice, so cannot later be presented to the tribunal. If the conciliation results in a successful conclusion, the parties sign a legally binding settlement agreement.

    If the conciliator concludes that a settlement is not possible within the prescribed period (generally one month from the date the claimant contacted Acas, although the conciliation officer can extend it by 14 days if both parties agree) or the prescribed period ends without a settlement being reached, Acas issues an early conciliation certificate to the claimant with a copy to the respondent.

    An early conciliation certificate includes a unique early conciliation reference number, which must be included on the claimant's claim form ET1 if they subsequently lodge a claim with the tribunal.

    When a claimant contacts Acas, this "stops the clock" on the time limit for lodging a tribunal claim, for the duration of the Acas conciliation period. The conciliation period runs from the day after the claimant contacts Acas, to the day they receive or are deemed to have received their early conciliation certificate. In addition, if the time limit for making a claim would have expired during that period, claimants will have a further month after it ends to lodge their claim with the tribunal.

    A claim can be made to the tribunal without having first been notified to Acas if it involves multiple claimants bringing claims against the same respondent, and one of the claimants has complied with the early conciliation requirement; or the claim appears on the same claim form as proceedings which do not require early conciliation; or an unfair dismissal claim is accompanied by an interim relief application.

    Another situation in which the claimant does not have to contact Acas is where the prospective respondent has already done so, in anticipation of a claim being brought against them. But contact by the respondent does not stop the clock, so even where the respondent has already contacted Acas about the issue, the claimant may choose to do so as well in order to take advantage of the time limit extensions.

    Early conciliation replaces Acas's current pre-claim conciliation, a voluntary procedure. But Acas says it will continue to offer help to anyone who wants to try to settle an issue before an early conciliation request is made.

    Early conciliation means that employers will have more contact from Acas and at an earlier stage in disputes, and that there may be a longer period between a dispute arising and the claimant lodging a tribunal claim. Employers may see early conciliation as a useful way to try to resolve a dispute without the time, cost and hassle of a tribunal case — or in some cases they may prefer not to take part in conciliation, but wait and see whether the employee will actually lodge a tribunal claim, especially if they would have to pay a fee to do so.

    Information about early conciliation is on the Acas website at www.acas.org.uk/index.aspx?articleid=4028. The form to notify ACAS is at https://ec.acas.org.uk/.

    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.
    The Employment Tribunals (Early Conciliation, Exemptions and Rules of Procedure) Regulations 2014 are at www.legislation.gov.uk/uksi/2014/254/made. There are a number of other regulations, mostly amending other legislation.

    A last-minute amendment about multiple respondents is in the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) (Amendment) Regulations 2014 at www.legislation.gov.uk/uksi/2014/847/contents/made.

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    MEDIATION IN EMPLOYMENT DISPUTES

    Updated 1/2/14. This information adds a new section on mediation to s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    The Chartered Institute of Personnel and Development (CIPD) and Acas published in February 2013 a revised version of Mediation: An approach to resolving workplace issues, originally published in 2008. Mediation can be useful if the employer and employee(s) don't want to get to the stage of early conciliation and potential employment tribunal claims. The guide can be accessed via tinyurl.com/abk3nox.

    Acas's short introduction to workplace mediation is at www.acas.org.uk/index.aspx?articleid=1680. This explains that the aim of mediation is to restore and maintain the employment relationship, by focusing on working together to go forward, not determining who was right or wrong in the past.

    An HR Zone article on 15 January 2014 looks at the progress of the two regional mediation networks for small and medium enterprises (SMEs) which were set up as pilot schemes in January 2012. The Department for Business, Innovation and Skills provided funding to train employees from 24 SMEs in Cambridge and Manchester, to enable them to provide mediation to organisations in their network. The aim of the networks is to help resolve employment disputes at an early stage in SMEs, preserving the employment relationship wherever possible. The article is at tinyurl.com/p26wjdb.

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    SETTLEMENT AGREEMENTS AND CONFIDENTIAL NEGOTIATIONS BEFORE TERMINATION OF EMPLOYMENT

    Updated 9/9/13. This information updates s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Under s.23 in the Enterprise and Regulatory Reform Act 2013, compromise agreements (also known as compromise contracts, in the context of the Equality Act 2010) have since 29 July 2013 been renamed settlement agreements. A compromise/settlement agreement is a legally defined agreement under which an employee who might be entitled to bring a tribunal claim against an employer agrees, in return for a negotiated financial sum, not to bring such a claim.

    S.14 of the Enterprise and Regulatory Reform Act adds a new s.111A to the Employment Rights Act 1996, with provision for negotiations between an employee and employer prior to termination of employment to be confidential in some circumstances.

    The new rules on settlement agreements and the negotiations that may precede them follow a government consultation from January to April 2011 on proposals to simplify resolution of workplace disputes and reduce the number of claims that go to tribunal, with the government's response announced on 23 November 2011. The government consulted further from September to November 2012 on ways to support the use of settlement agreements. Its response to this consultation was published on 17 January 2013 and is available via tinyurl.com/aev627d.

    Following this, Acas consulted from 12 February to 9 April 2013 on a draft statutory code of practice on settlement agreements. The results of this consultation are at tinyurl.com/m254rnd. The final statutory code of practice came into effect in 29 July 2013. The code, more detailed guidance, and an overview of settlement agreements are at www.acas.org.uk/index.aspx?articleid=4395.

    The government's initial consultation in 2011 included proposals for protected conversations, which would have allowed employers to discuss issues which could lead to dismissal, such as retirement or poor performance, in an open manner with staff, and offer a no-fault termination package through a settlement agreement, without these discussions and the settlement offer being used in any subsequent unfair dismissal tribunal claims.

    The provision now included in s.14 of the Enterprise and Regulatory Reform Act 2013 is much narrower. For one thing, protected conversations are now referred to as confidential negotiations before termination of employment. The shift from "conversation", which the government described as a frank discussion, to "negotiation" is significant.

    In addition there are restrictions on the type of situations in which it can be used. Confidentiality applies only in relation to a subsequent unfair dismissal claim — not in relation to other claims such as breach of contract, and also not in relation to any claim where dismissal is automatically unfair, or for claims in relation to discrimination or whistleblowing. Acting on the government's initial assertion that a protected conversation could be used for a frank discussion about retirement would, therefore, be very risky, as such discussions/negotiations could lead to a subsequent claim for age discrimination, and the content of the negotiations would be disclosable. This would of course apply not just to age, but to other discussions about termination of employment that have the potential to be, or to be seen as, discriminatory.

    Negotiations are also not confidential in relation to anything said or done which in the tribunal's opinion was improper, or was connected with improper behaviour. Improper behaviour is defined in the code of practice on settlement agreements, and includes harassment, victimisation, discrimination and undue pressure. Commentators have made the point that in order to decide whether something improper was said or done, the tribunal would have to hear about the negotiations anyway!

    The code of practice explains how the confidential negotiations provision differs from ordinary "without prejudice" discussions. These also cannot be disclosed in tribunal or court proceedings, but the without prejudice rule applies only if there was an existing dispute, and only if it was made explicit that the discussions are to be without prejudice.

    When carrying out discussions that could lead to a settlement agreement, it is therefore very important for both parties to be aware of whether the discussions are non-disclosable in a subsequent legal case under the confidential negotiations before termination provision, or non-disclosable under the ordinary without prejudice rules, or disclosable.

    Significant changes between the consultation version of the draft code and the final draft code include:

    • the code no longer contains a requirement for the initial termination settlement offer to be in writing;
    • template letters are in non-statutory guidance rather than in the statutory code of practice;
    • there is a new requirement that an employee must have a minimum of 10 calendar days to consider any offer and receive independent advice;
    • there is now an expectation (but not requirement) that employees should be allowed to be accompanied at the meeting by a work colleague, trade union official or trade union representative.
    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted. The commencement order is at www.legislation.gov.uk/uksi/2013/1648/made.

    Although initially it was envisaged that the Employment Rights Act 1996 s.203(3)(b) would be amended to make it easier for settlement agreements to cover current and future claims rather than just those specifically listed in the agreement, this has not happened, so a settlement agreement still applies only to matters explicitly mentioned in it. Nor has ERA 1996 s.203(3)(c) been amended, so it is still necessary for an employee to receive independent advice from a solicitor, trade union official or qualified advice worker before entering into a settlement agreement.

    If an employee rejects a settlement agreement, the dispute may then be resolved through performance management, disciplinary or grievance procedures, or end in dismissal. Any such process that could lead to termination of employment should start from scratch, as the parties cannot rely on the offer of a settlement agreement or any discussions about the agreement being part of the process.

    After rejecting a settlement agreement, an employee who has the necessary period of qualifying service can take their case to tribunal. If the claim is for unfair dismissal and is covered by the provisions on confidential negotiations, or if the discussions meet the "without prejudice" requirements, the negotiations will not be able to be disclosed in tribunal.

    In a separate matter, s.147 of the Equality Act 2010 was amended on 6 April 2012 to make clear that compromise agreements can be safely used to settle discrimination claims [see Compromise agreements and discrimination claims].

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    ABOLITION OF STATUTORY DISCRIMINATION QUESTIONNAIRE PROCEDURE: EMPLOYMENT

    Added 1/4/14. This information updates s.37.3.1 in The Russell-Cooke Voluntary Sector Legal Handbook.
    For breaches of discrimination law taking place on or after 6 April 2014, the statutory discrimination questionnaire procedure which since October 2010 has enabled workers to obtain information from their employer about an alleged discriminatory act is abolished. (The procedure also covered discrimination in the provision of goods, services and public functions; for more about this, see Abolition of statutory discrimination questionnaire procedure: Goods, services and public functions on the Equality page of this website.)

    Instead of the statutory procedure for workplace discrimination, there is an informal process backed up with non-binding good practice guidance from Acas.

    Under the statutory procedure, if the employer gave evasive or equivocal answers to the questionnaire or did not respond within eight weeks, the tribunal was entitled to draw an adverse inference from this, seeing it as evidence that the employer had discriminated unlawfully.

    The abolition of the statutory procedure does not prevent those who believe they have been discriminated against from asking questions, but it means there is no longer a statutory framework for the questions, and employers need to be aware that such questions could be asked not only in a formal letter, but also in an informal letter or email. And although there is no longer a statutory requirement for the employer to respond within eight weeks, responding evasively or not at all could still lead to the tribunal drawing an adverse inference. In any case, providing a proper response could lead to resolving the dispute without a tribunal case, or if the case does go to tribunal, the employer might be ordered to provide the information anyway.

    Even without a statutory questions procedure, workers who ask in good faith for information about possible breaches of equality legislation are protected from being victimised for having done so.

    The 26-page Acas guidance, Asking and responding to questions of discrimination in the workplace, was published in January 2014. It includes guidance for both questioners and responders on questions of discrimination at work and questions related to equal pay and contractual terms and conditions. It also includes a template for questioners to help them organise their questions. It is at tinyurl.com/m93aobd.

    The provision for statutory questionnaire procedure is in the Equality Act 2010 s.138 at www.legislation.gov.uk/ukpga/2010/15/section/138. It is repealed by s.66 of the Enterprise and Regulatory Reform Act 2013.

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    CHANGES TO EMPLOYMENT TRIBUNAL RULES AND PROCEDURES

    Updated 30/3/14. This information updates s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Significant changes to employment tribunal procedures took place in 2012 and 2013, and continued in 2014. Up to date information for employees and employers is on the Ministry of Justice website at www.justice.gov.uk/tribunals/employment and the Gov.uk website at www.gov.uk (search for Employment tribunal). CIPD's factsheet on employment tribunals, revised most recently in March 2014, can be accessed via tinyurl.com/cx52mmo.

    Financial penalties for employers
    For claims presented to the employment tribunal on or after 6 April 2014, the tribunal has discretion to require employers to pay a penalty to the Exchequer if they have breached a worker's statutory rights and there are "aggravating features", such as malice or negligence. This applies not only to claims brought by employees, but also to claims brought by workers, which includes casuals and some others who do not fit the legal definition of employee.

    On top of the compensation awarded to the claimant, an employer could be required to pay to the Exchequer a penalty of up to 50% of the tribunal award, subject to a lower limit of £100 and an upper limit of £5,000. Where the tribunal orders a non-financial award to the claimant, it will be able to ascribe a monetary value to it. The penalty is reduced by 50% if it is paid within 21 days. In deciding whether to impose a penalty and how much it should be, the tribunal must consider the employer's ability to pay.

    The Enterprise and Regulatory Reform Act 2013, which includes this provision in s.16, does not define aggravating feature. But the explanatory notes to the act say a financial penalty is more likely where the action was deliberate or committed with malice, the employer has a dedicated HR team, or the employer repeatedly breached the employment right. The notes say a penalty may be less likely where the employer has been in operation for only a short time, is a micro employer (fewer than 10 employees), has only a limited HR function, or made a genuine mistake.

    The act is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

    Changes in 2013
    A review of employment tribunal rules and procedures for England and Wales in 2012 led to the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, which came into effect on 29 July 2013.

    The rules are shorter and simpler than the previous version from 2004, and as one commentator says, "some details have changed, but it is unlikely employers using the tribunal system will notice a great deal of difference as a result of the rule changes on their own."

    Some of the changes are:

    • redesigned forms;
    • guidance from the employment tribunal presidents to help ensure that judges deal with hearings in a consistent manner which ensures parties know what to expect regardless of where their case is heard;
    • a new procedure for all claim and response forms to be checked by an employment judge, to see whether there is an arguable claim and defence;
    • a new procedure for preliminary hearings that combines separate pre-hearing reviews and case management discussions, in order to reduce the overall number of hearings and lead to a quicker disposal of cases, saving time and costs for all parties;
    • a new provision for all or part of a hearing to be conducted by telephone or electronic communication, provided the tribunal considers this just and equitable and provided that the parties and members of the public attending the hearing are able to hear what the tribunal hears and see any witness as seen by the tribunal;
    • a new lead case mechanism, which enables the tribunal to identify claims giving rise to common or related issues of fact and law, specify one or more of those claims as a lead claim, and stay (in Scotland, sist) the other claims. The related cases will be bound by decisions in the lead case on related issues, although a party may apply for such a decision not to apply to a related case.
    The Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013 are at www.legislation.gov.uk/uksi/2013/1237/contents/made.

    Maximum awards
    The method of calculating the basic award in unfair dismissal claims, and the maximum compensatory award, were both changed in 2013 [see Unfair dismissal awards, above].

    Changes in 2012
    On 6 April 2012 a number of changes in employment tribunal procedure took place, intended to reduce the complexity and perceived inefficiency of the system. The changes included increases in the maximum amounts for deposit orders and cost caps; witness statements being taken as read rather than witnesses having to read them out; and the judge being able to make the parties to the dispute pay witness costs. For more about these changes, see www.sandy-a.co.uk/vslh/37claims.htm.

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    CHANGES TO EMPLOYMENT APPEAL TRIBUNAL RULES

    Added 9/9/13. This information updates s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Amendments to employment appeal tribunal (EAT) rules, described by a leading employment barrister as "deeply troubling", came into effect on 29 July 2013. These changes effectively remove the right of an appellant (the person bringing an appeal) to challenge an EAT judge's rejection of the notice of appeal or cross-appeal at the early "sift" stage because it does not have a reasonable chance of success, is an abuse of the appeal process, or is considered to be totally without merit.

    As the Matrix Chambers barrister says, "Given that the law reports are full of appeal cases which, although ultimately successful, were initially rejected at the sift stage by an EAT judge, the three amendments are deeply troubling."

    The Employment Appeal Tribunal (Amendment) Rules 2013, which include these and other new provisions, are at www.legislation.gov.uk/uksi/2013/1693/made.

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    CONSTITUTION OF EMPLOYMENT TRIBUNALS

    Updated 24/6/13. This information updates s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Since 6 April 2012 employment judges have heard unfair dismissal cases alone in the employment tribunal, unless the judge directs otherwise. The Employment Tribunals Act 1996 (Tribunal Composition) Order 2012 is at www.legislation.gov.uk/uksi/2012/988/made.

    From 25 June 2013, s.12 of the Enterprise and Regulatory Reform Act 2013 broadens this to allow employment judges to hear all cases (not just unfair dismissal) alone in the employment appeal tribunal, unless they direct otherwise.

    In a recent employment appeal tribunal case, an EAT judge expressed concern about judges sitting alone for unfair dismissal cases in the ET. In a case involving a postman with 19 years' service dismissed for alleged dishonesty in using the Royal Mail's taxi account, the ET judge found the dismissal unfair but the majority — the two lay members of the tribunal — found it fair. On appeal the EAT upheld the view of the lay members rather than the judge's view, saying the lay members drew on "their valuable common sense and knowledge of what any employee could be expected to know". The EAT decision in McCafferty v Royal Mail is at www.bailii.org/uk/cases/UKEAT/2012/0002_12_1206.html.

    The Enterprise and Regulatory Reform Act 2013 is at www.legislation.gov.uk/ukpga/2013/24/contents/enacted.

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    EMPLOYMENT TRIBUNAL FEES

    Updated 17/5/14. This information updates s.37.3 in The Russell-Cooke Voluntary Sector Legal Handbook.
    Until 29 July 2013, there was no charge for taking a claim to an employment tribunal or employment appeal tribunal. But there have been fees since then, and there will continue to be unless the court of appeal not only allows trade union Unison to appeal the high court decision in the union's judicial review application against the fees, but then also overturns the decision. And even if Unison wins its case, it is likely that fees will be reduced rather than abolished.

    Challenges to the fees
    The introduction of fees was intended to bring the employment tribunal in line with other civil courts, and to lower the cost of the employment tribunal system to the taxpayer. But in its application for judicial review on 17 June 2013, Unison said it is contrary to EU law to bring in fees which will make it virtually impossible or excessively difficult for workers to exercise their employment law rights and would have a disproportionate effect on minority groups. Unison also gave several other legal arguments, which are summarised in its announcement at tinyurl.com/n826h9r.

    The lord chancellor said on 11 July 2013 that any tribunal fees paid between 29 July 2013, when the fees were introduced, and the high court's full hearing would be repaid if the court decided that fees were unlawful. This would not, of course, help those who have decided not to bring a claim they can't afford the fee. And it is not clear whether this promise will extend to the period between the high court's judgment in February 2014 and a court of appeal decision.

    Unison's application to the high court was heard in the high court on 22 October 2013 with a further hearing on 4 November 2013, and the court's rejection of the application announced on 7 February 2014. One of the reasons given was that Unison had brought the case too early, before adequate evidence about the impact of fees was available — but an application for judicial review has to be made within three months! A real chicken and egg situation. Unison has appealed to the court of appeal, and in the meantime the high court has said clearly that it expects the government to keep this issue under review, and to revoke or amend the scheme if Unison's arguments about the impact of fees are borne out.

    Unison's statement on the decision is at tinyurl.com/nolkbva. Old Street Chambers has a short but very clear summary of court's reasons for its judgment, at tinyurl.com/lszp5o9, so I am not going to summarise them here.

    The judgment in Unison (R, on the application of) v the Lord Chancellor and the Equality and Human Rights Commission is at www.bailii.org/ew/cases/EWHC/Admin/2014/218.html.

    In Scotland, solicitors Fox & Partners applied to the court of session for judicial review on 2 July 2013, with slightly wider issues than the Unison application. In October 2013 the court of session stayed the proceedings for six months, on the basis it raised the same issues as the Unison review. There does not seem to have been any further announcement since the high court decision.

    The fees
    Claims are divided into type A (straightforward claims such as unlawful deductions, unpaid wages and redundancy payments), and type B, covering more complex claims such as unfair dismissal and discrimination.

    The fee for type A claims is £160 for the issue of a claim and £230 if the claim goes to a hearing. For type B, the issue fee is £250 and £950 for a hearing. For the employment appeal tribunal, an issue fee is £400 and the hearing fee £1,200.

    In the original legislation, equal pay claims were type B, but the Ministry of Justice confirmed on 12 July 2013 that this was a drafting error and they were actually type A. However, when the legislation was issued to amend this and other drafting errors, equal pay and a number of other claims had been reclassified as type B! From 6 April 2014, the following are type B: equal pay, sex equality in pension schemes; failure to inform or consult under TUPE; some breaches of the Working Time Regulations, and some breaches of the right to request time off for study or training.

    Where more than one claimant is bringing the same claim, the fee structure is adapted, e.g. for a type A claim the issue and hearing fees for two to 10 claimants are £320 and £460 respectively (twice the single fee), for 11 to 200 claimants the fees are £640 and £920 (four times the single fee); for more than 200 claimants they are £960 and £1,380 (six times the single fee). The same ratios apply for type B claims. For multiple appeals in the employment appeal tribunal, only one fee is payable.

    Other application fees include £100 to set aside a default judgment, £60 to dismiss a claim following settlement or withdrawal, £600 payable by the employer for judicial mediation, £160 payable by the employer for a breach of contract counterclaim, and £100 or £350 for a review of a tribunal's decision or judgment.

    These fees do not cover the full cost of employment tribunals, so they may be reviewed after implementation.

    The fees have to be paid in advance by the party bringing the claim. For claims made online there is an online service for the payment of fees. For claims sent by post, the ET1 and a cheque have to be sent to a designated tribunal.

    Remission of fees
    People receiving certain welfare benefits or tax credits or on low incomes can apply for the fee to be waived (remission). In addition the tribunal has power to order the unsuccessful party to reimburse fees paid by the successful party, if these are not covered by remission. One successful outcome of the high court case is that the lord chancellor said, during the hearing, that there would be a presumption that the respondent will be required to reimburse the fees paid by a successful claimant, and the government's guidance for claimants has been amended accordingly. The court's judgment noted that consideration is being given to amending the relevant legislation to make this expectation clear.

    When the fees were introduced, there was considerable concern that they would discourage workers from taking action against employers, and would discourage employers from trying to settle disputes if they knew employees would be unlikely to go to the tribunal. The anticipated drop in claims is certainly happening; employment tribunal statistics released on 13 March 2014 show a 79% drop from October-December 2012 to the same quarter in 2013 (from 45,240 claims to 9,801).

    The impact of fees is exacerbated by the withdrawal of legal aid for most employment claims in England and Wales on 1 April 2013, although for claims under the Equality Act 2010 it remains available for advice and assistance prior to tribunal proceedings, and for representation in the employment appeal tribunal. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is at www.legislation.gov.uk/ukpga/2012/10/contents.

    Further information
    Guidance about the fees, including a form to apply for help with fees or a discount, can be accessed on the Gov.uk website via tinyurl.com/p4gqghg. A Ministry of Justice stakeholder factsheet, issued on 15 July 2013, is at tinyurl.com/p26uyqe, and information about making a tribunal claim or being taken to tribunal, and a form to make a claim, are on the Gov.uk website (search for employment tribunal).

    The Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 is at www.legislation.gov.uk/uksi/2013/1893/made. The legislation follows a Ministry of Justice consultation from 14 December 2011 to 6 March 2012, the results of which were published on 13 July 2012.

    The Courts and Tribunals Fees (Miscellaneous Amendments) Order 2014, reclassifying some fees as type B, is at www.legislation.gov.uk/uksi/2014/590/contents/made.

    Go back to contents
    Go to archived items about employment claims and settlement (VSLH3 chapter 37)



    VOLUNTEERING


    VOLUNTEERING RESOURCES

    Updated 2/2/15. This information updates chapter 39 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Following Volunteering England's merger with the National Council for Voluntary Organisations in January 2013, its resources on volunteering could still be accessed via www.volunteering.org.uk, with further resources available via www.ncvo.org.uk/ncvo-volunteering. NCVO announced in June 2014 that it was working towards closing the volunteering.org.uk website in autumn 2014, with the resources moved to KnowHow NonProfit (knowhownonprofit.org/people/volunteers). As of the end of January 2015, this had not yet happened, and the old VE good practice bank and other materials remain at volunteering.org.uk.

    Many of the legally based information sheets are out of date. Volunteering and state benefits, for example, was last updated in May 2011, even though the benefits situation has changed considerably since then. It is not clear whether information sheets relating to law which has changed will be updated, removed, or move when they migrate to the knowhownonprofit.org website.

    Some of the resources on volunteering.org.uk and the NCVO website are free of charge, but many are available only to NCVO members. (The NCVO annual membership fee ranges from free for organisations with annual income up to £30,000, to £771 for organisations over £5 million.) Many of the resources currently on KnowHow NonProft (not only about volunteering, but about all topics) are free, but some are available only to NCVO members and for others there is a charge.

    More usefully, Wales Council for Voluntary Action's resources for volunteer managers were updated in summer 2014 and are freely available. These include a wide range of information sheets via tinyurl.com/m5a2jsw and model policies and other documents, such a volunteer agreement and expenses policy, via tinyurl.com/nn7cl6q.

    Relevant aspects of the law — minimum wage, tax, volunteers on benefits, volunteers from overseas, discrimination, working with children or vulnerable adults, health and safety, volunteer drivers, volunteer fundraisers etc — are the same in England and Wales.

    Most relevant law is also the same, or basically the same, in Scotland and Northern Ireland, although some may be different and advice should be taken from Volunteer Scotland (www.volunteerscotland.net) or, in Northern Ireland, Volunteer Now (www.volunteernow.co.uk).

    The Russell-Cooke Voluntary Sector Legal Handbook, in particular chapter 39, contains detailed information about most legal aspects of volunteering. This was published in 2009 so some of the detail is no longer up to date, but the underlying law — in particular about volunteers receiving payment or incentives, and volunteers receiving state benefits — remains valid. Organisations which do not have a copy may be able to consult it at their local volunteer centre, council for voluntary service or similar infrastructure support organisation.

    Go back to contents
    Go to archived items about volunteers (VSLH3 chapter 39)


    RIGHTS AND RESPONSIBILITIES OF VOLUNTEERS AND VOLUNTEER-INVOLVING ORGANISATIONS

    Updated 2/2/15. This information updates s.39.1.2 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).

    The 3R promise
    The Call to Action Progress Group (CAPG) was set up in November 2011 to take forward the work of the independent Volunteer Rights Inquiry, which had been convened by Volunteering England in November 2009 to look into and make recommendations about the treatment of volunteers and the rights volunteers have if they are mistreated by their organisation. This followed a number of well publicised cases involving clear breakdowns of communication between managers or management committees/boards and volunteers.

    In its final report in March 2011, the Volunteer Rights Inquiry issued a call to action, the "3R promise", asking organisations to commit to getting it Right from the beginning, achieving Reconciliation, and accepting Responsibility in resolving conflicts with volunteers.

    The CAPG was set up for two years to monitor the sign-up to the 3R promise, create greater awareness of and commitment to the fair treatment of volunteers, and review means of redress for volunteers who believe they have been treated unfairly.

    Its final report, issued in July 2014, includes a revised version of the 3R promise. Its recommendations and next steps are under four headings.

    • External redress and regulation. The CAPG could not reach consensus on whether there should be a regulatory system (a volunteer complaints commissioner or similar) to provide for fair treatment of volunteers and independent resolution of disputes, or whether this is impractical and disproportionately expensive, and the problem should be tackled through good management practice in organisations. The report put forward three questions about this issue for consideration by volunteering organisations and umbrella bodies.

    • Complaints resolution information and services. The CAPG recognised that a phone line dedicated to helping volunteers could be very helpful in resolving or clarifying disputes, but did not have the capacity to examine feasibility. As a next step it asks whether there is scope or, possibly, a market for independent appeals or mediation services, and how a pilot project could be developed to provide information to volunteers who need advice.

    • Evidence. The report urges research bodies to formulate a proposal for a research project to create a sound evidence base on volunteers' experiences and allegations of unfair or unjust treatment.

    • Focus on good practice in volunteer management. The report noted that the 3R promise had been formally signed only by 220 organisations, but there was strong commitment among these signatories. It recommends that NCVO include the 3R promise in its good practice guidance, making it accessible to the public as well as NCVO members, and providing for online sign-ups and interactive reporting on how the promise is being implemented.

      It recommends that all volunteer-involving organisations concerned with standards and good practice should adopt the principles or text of the 3R promise. (Personally, I would argue that it should especially be adopted by organisations that are not particularly concerned about standards and good practice.) The report also suggests that the promise, along with guidelines, could be incorporated into accreditation and standards, particularly Investing in Volunteers.
    Unlike Europe-wide initiatives [see below], the CAPG did not recommend that legislation be changed to explicitly include volunteers — even though its report notes that the right to fair treatment is embedded in employment law for employees and in equality law for employees and service users, but there is no corresponding legal protection for volunteers.

    The CAPG report, which includes the 3R promise in appendix 2, can be accessed on the NCVO website via tinyurl.com/ns2lsnp.
    There is a short blog about the report at tinyurl.com/obu8n8e.

    Two recent examples of the sorts of publicity that can result from volunteer dissatisfaction are "MPs urge British Red Cross to reinstate volunteer who protested against same-sex marriage" (14 November 2014, tinyurl.com/mp6oorm), and "St John Ambulance disciplined volunteers who objected to restructure" (21 January 2015, tinyurl.com/qdfl93v). Both of these articles are in Third Sector magazine.


    EU resolution on volunteering and voluntary activity in Europe
    A resolution on volunteering and voluntary activity in Europe was passed by the European Parliament on 10 December 2013, but is not binding on the European Commission or member states.

    Among more than three dozen recommendations for supporting various aspects of volunteering, the resolution:
    • calls on the European Commission to carry out a detailed analysis of national volunteering practices and traditions, with a view to fostering a common European approach;
    • recommends that member states adopt or revise laws with a view to creating a favourable environment for volunteering, with a focus on strengthening volunteers’ rights using the European charter for the rights and responsibilities of volunteers [see below];
    • encourages member states to continue creating an enabling environment for volunteering, especially by means of a legal framework where one is still lacking;
    • urges member states to institutionalise volunteering [I'm not sure what this means in practice] in a manner consistent with their national labour laws;
    • calls on the Commission to ensure that member states make it compulsory for volunteers to have proper insurance cover, in order to protect their health and safety during volunteer work;
    • encourages member states to implement guidelines set out in the International Labour Organisation manual on the measurement of volunteer work, so that a body of comparable data providing a clear picture of the contribution voluntary work makes to society can be compiled;
    • calls on the Commission to recognise volunteer time as eligible in-kind co-financing for all European grants, and to work with volunteer organisations in order to develop systems for recording and documenting volunteer time on the basis of the many tools and models available;
    • calls on member states and the Commission to set up a service with responsibility for volunteering policy and for coordination in this area between Commission departments and the various institutions;
    • stresses the need for a centralised EU portal providing a pan-European platform for coordination in this area, including a volunteering best practice database.
    Other recommendations are wide-ranging, including development of skills and employability; promotion of volunteering; and the importance of volunteering in promoting social inclusion, intercultural learning and self esteem and in combating prejudice and racism.

    The resolution is number 2013/2064(INI) and can be accessed on the European Parliament website via tinyurl.com/ppnhtgf.
    The ILO manual on the measurement of volunteer work is on the ILO website via tinyurl.com/q8gl6ub.


    European charter on the rights and responsibilities of volunteers
    The European charter on the rights and responsibilities of volunteers, to which the European Parliament resolution above refers, was drawn up by the European Youth Forum, a network of almost 100 volunteer-involving national youth councils and international non-governmental youth organisations. Launched in the European Parliament in September 2012, it sets out:
    • a definition of volunteer, volunteering provider and volunteering activity;
    • 16 rights of volunteers, divided into core rights, rights to support from volunteering providers, and rights to personal development;
    • seven responsibilities of volunteers, among them respect for the law, non-discrimination, participation in training, confidentiality and cooperation;
    • five rights of volunteering providers, including "a stable and sustainable support framework and enabling environment, including adequate financial structures that provide accessible, sustainable and flexible financing" [if only!];
    • seven responsibilities of volunteering providers, divided into core responsibilities, responsibilities to support volunteers, and responsibilities to support the personal development of volunteers;
    • an appeal to European, national and local authorities to put in place policies and legal frameworks which include the rights and responsibilities of volunteers and volunteer providers.
    The charter is on the European Youth Forum website via htinyurl.com/pnkqkt7.

    Go back to contents
    Go to archived items about volunteers (VSLH3 chapter 39)


    VOLUNTEERS FROM OVERSEAS

    Added 2/2/15. This information updates s.39.6 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Wales Council for Voluntary Action has a highly recommended range of information sheets, model policies and model documents on volunteering [see Volunteering resources, above]. The most recent addition is an information sheet on involving volunteers from overseas, added in November 2014.

    It covers, in five pages, why organisations might want to involve volunteers from overseas, creating successful placements for volunteers from overseas, the right to volunteer, recruiting volunteers directly from overseas and recruiting volunteers from overseas who are already in the UK, and includes a two-page appendix on the certificate of good conduct for volunteers who cannot obtain a disclosure and barring (DBS) check in the UK [see Criminal record checks for people from overseas; opens in a new window].

    This and other WCVA information sheets about volunteering can be accessed via www.wcva.org.uk/advice-guidance/volunteers.

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    Go to archived items about volunteers (VSLH3 chapter 39)


    GUIDANCE ON SAFEGUARDING FOR VOLUNTEER INVOLVING ORGANISATIONS

    Added 2/2/15. This information updates ss.39.10.1 & 41.1 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    The National Council for Voluntary Organisations published at some point in the past year (I can't find a date on its website, the document itself, or via Google) an excellent 22-page guide, Safeguarding for volunteer involving organisations: A guide to help you develop a comprehensive approach to safeguarding in your organisation. As well as clear information about safeguarding policies and good practice, it includes clear information and scenarios about when disclosure and barring checks are and are not necessary, information on recruiting a volunteer with a criminal record, and useful flowcharts on regulated activity relating to children and young people and relating to adults.

    Nearly all aspects of volunteering are the same for volunteers as for paid workers, but there is at least one difference of which I am aware. Work with the opportunity for contact with children in specified establishments, such as schools, nurseries and children's homes, is always regulated activity when carried out by a paid worker, even if it is supervised; but is not regulated if it is carried out by volunteers supervised to a reasonable level, in accordance with the statutory guidance on supervision. There may be other differences, so the flowcharts in Safeguarding for volunteer involving organisations should be used only for volunteers.

    The publication is on the KnowHow NonProfit website via tinyurl.com/mcx7tuz.

    Go back to contents
    Go to archived items about volunteers (VSLH3 chapter 39)


    VOLUNTEERS AND STATE BENEFITS: RESOURCES

    Updated 2/2/15. This information updates s.39.11 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Each state welfare benefit has its own rules about volunteering, and especially when the rules change there may be problems of misinterpretation, or different benefits advisors may interpret the rules differently. The best starting point has been the Department for Work and Pensions' Volunteering while getting benefits (DWP1023, October 2010), but this was archived on the Gov.uk website on 30 January 2015 and does not appear to have been replaced. (I couldn't find anything on Gov.uk or Google.) If anyone knows of a replacement, please let me know.

    The "When you can volunteer" page in the Volunteer placements, rights and expenses section at www.gov.uk/volunteering/when-you-can-volunteer still links to DWP1023. On the assumption the information might be available in relation to each individual benefit, I did a quick look at jobseeker's allowance and personal independence payment at www.gov.uk/browse/benefits, and didn't see anything about volunteering in any of the information about those two benefits, so there is no reason to believe it's in the information about other benefits. (And this is why it takes so long to do these updates! And I don't even need the information, except to pass it on to you who are reading this.)

    In the meantime ... In general, people receiving state benefits can volunteer provided the only money they receive from volunteering is to cover genuine expenses, and they continue to meet the conditions of the benefit or tax credit they receive, such as actively seeking work. Genuine expenses include travel, meals while volunteering, any equipment the volunteer has to buy, and other expenses incurred that are necessary for the work.

    Provided the rules are complied with, there is no statutory restriction on the number of hours a person receiving state benefits can volunteer — except for some claimants receiving universal credit, for whom a specific rule on the number of hours spent volunteering may apply [see below].

    Go back to contents
    Go to archived items about volunteers (VSLH3 chapter 39)


    UNIVERSAL CREDIT RULES ON VOLUNTEERING

    Updated 2/2/15. This information updates s.39.11 in The Russell-Cooke Voluntary Sector Legal Handbook (VSLH3).
    Universal credit is a single benefit for people who are unemployed or on a low income, which will eventually replace income-based jobseeker's allowance, income-related employment and support allowance, income support, working tax credit, child tax credit and housing benefit. Following a trial period that started on 29 April 2013 it was expected to be rolled out across the UK from October 2013 to 2017, but the government announced in autumn 2014 that it is accelerating the process, and from February 2015 it will be rolled out across the UK for new claims from single jobseekers. The rollout for couples and families will follow.

    Information about universal credit on the Gov.uk website is very basic, such as the introduction to universal credit at tinyurl.com/nsa3lbw. The most detailed I have been able to find is an early policy document at tinyurl.com/blhhvrj, and a toolkit for partners working with the Department for Work and Pensions, at www.tinyurl.com/kar9xcz. Neither of these, as far as I can tell, mentions volunteering — though I admit I did not click on every link.

    In the absence of being able to find anything current, I am not certain that the information below, which I put on this website on 23 June 2013, is still valid. I assume it is, but it should not be relied upon. [If anyone knows one way or the other, please let me know.]

    Universal credit claimants will be placed in one of four groups: no work related requirements, work focused interviews only, work preparation, or all work related requirements. For those in the first three groups there is no issue with volunteering. Only those in the fourth group (all work related commitments) will be affected by the rule on volunteering,

    Claimants in this group will be assessed as being able to work for 35 or a specified lower number of hours per week. Under reg.95 of the Universal Credit Regulations 2013, they will then be required to spend this number of hours for work search (taking action for the purpose of obtaining paid work). If they are carrying out paid work, voluntary work, a work preparation requirement or voluntary work preparation, the amount of time spent on these is deducted from the amount of time they have to spend on work search activities.

    Work preparation requirements, as defined by s.16 of the Welfare Reform Act 2012, include attending a skills assessment, improving personal presentation, participating in training, participating in an employment programme, undertaking work experience or a work placement, developing a business plan, or other activities specified in regulations. Voluntary work preparation means other activities that are not in the regulations but are agreed by the Jobcentre Plus advisor.

    Reg.95 goes on to say that no more than 50% of a claimant's total required hours can be deducted for voluntary work. So if, for example, a claimant is assessed as able to work 35 hours per week, a maximum of 17.5 of those hours can be deducted for volunteering, and the remaining 17.5 hours must be spent on other allowed activities to search for, prepare for or carry out work. Similarly, if a claimant is assessed as being able to work 20 hours per week, a maximum of 10 hours can be deducted for volunteering and the remainder of the time must be in other allowed activities.

    This is a significant change, as there has never been a statutory specified amount of time an unemployed person/jobseeker has had to spend actively seeking work, nor has there been a restriction on the amount of time they can spend volunteering (despite some Jobcentre Plus advisors sometimes saying there is).

    Volunteering England produced a briefing in 2012 saying that the universal credit regulations introduce a regulatory restriction on volunteering and giving the impression that claimants would not be able to volunteer for more than 50% of their total specified hours. This is not the case.

    There is a regulatory restriction on the amount of volunteering that can be deducted from the hours that have to be spent on searching for work, but there is nothing to stop the claimant spending additional hours volunteering in their own time. This is confirmed in para.J3074 of the DWP's Advice for decision making manual, which states, "Claimants can do as much voluntary work as they wish but for the purposes of UC, only 50% of their expected hours of work can be a relevant deduction against their work search activities for the week." The DWP manual is at www.dwp.gov.uk/docs/admj3.pdf.

    As under the current rules for jobseekers, universal credit claimants must, under reg.96 of the regulations and s.18 of the Welfare Reform Act, be immediately available and willing to attend a work interview and to start work. But reg.96, like current legislation for jobseekers, allows extensions of up to 48 hours to attend an interview and one week to start paid work, for people who need the extra time because they are volunteering.

    The Welfare Reform Act 2012 is at www.legislation.gov.uk/ukpga/2012/5/contents.
    The main Universal Credit Regulations 2013 are at www.legislation.gov.uk/uksi/2013/376/contents/made. There are a number of related regulations; for these go to www.legislation.gov.uk and search for Universal credit.

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