1. Employment Status. Worker or self-employed
Was a cricket club groundsman, operating through his own business, a worker, thereby entitling him to holiday pay?
The Mote Cricket Club has two cricket pitches on grounds at Maidstone in Kent. It had employed a groundsman from about 2000. It was common ground between the parties that he had been an employee of the Club. As part of his contractual arrangements, he had licence to live in residential accommodation at Moteside.
Mr Waters was a member of the Club and, latterly, of the committee. He had, on occasion, worked as a volunteer and/or casual worker assisting the groundsman. In 2011 he started a business, Green Hand Gardens, which provided gardening and grounds services, including the maintenance of another cricket pitch.
The employed groundsman vacated Moteside in 2016. It was eventually decided that his replacement, Mr Waters, was to be engaged as a self-employed contractor. The parties then fell out over money. Mr Waters claimed, inter alia, holiday pay, asserting he was a 'worker'.
Core to this case, said HHJ James Tayler, was the assessment of whether Mr Waters was genuinely in business on his own account and whether the club was a customer of that business. The tribunal concluded that was the case, even though the club was substantially the major customer of that business. It also noted that the financial contribution of the respondent to the annual turnover was £22,000 out of a total of £40,000.
The EAT held the tribunal was entitled to conclude that there was no "sham" agreement. As he was genuinely self-employed, running his own business, said the EAT, Mr Waters was not a 'worker', entitled to holiday and other benefits attached to worker status.
2. E-learning New Course “MENTAL HEALTH FIRST AID”.
Mental Health First Aid teaches participants how to notice and support individuals who may be experiencing mental health issues or exhibiting the signs of substance use in a work environment. They are also taught how to connect those people with appropriate help from fellow employees, community resources or healthcare professionals.
Around 25 per cent of the UK population will experience a mental health problem at some point in their lives. Most are mild, tend to be short-term and are usually treated successfully with therapy and medication.
But it is still a significant problem. Mental Health First Aid teaches participants how to notice and support individuals who may be experiencing mental health issues or exhibiting the signs of substance use in a work environment. They are also taught how to connect those people with appropriate help from fellow employees, community resources or healthcare professionals.
The course introduces the subject and outlines the benefits of Mental Health first aid and workplace wellness schemes. It then goes on to cover the effects of stress on individuals and teams and discusses how stress and mental health are linked.
It then covers the roles of employers, managers and employees in ensuring that a Mental Health First Aid programme is successful. It concludes with a series of practical examples of how to apply mental health first aid to real situations, how to support employees who are experiencing mental health issues and where to point them for further help and advice.
Please contact us here if you wish you order or discuss this course.
3. Health and Social Care – National Insurance contribution uplift
See a message from HMRC below.
We would appreciate your assistance to help your employees understand that the increased National Insurance contribution of 1.25 percentage points from 6 April 2022 is helping fund the NHS, health and social care.
We are therefore requesting that employers include a message for affected employees on all payslips between 6 April 2022 and 5 April 2023, explaining the increased National Insurance contribution. The message should read; "1.25% uplift in NICs funds NHS, health & social care."
We have also been in contact with payroll software providers to request that they include this messaging in their software and wider support models, but we realise some employers will need to make the change directly.
You may have already seen this request in our December 2021 and February 2022 employer bulletins, but we also wanted to email you directly.
As background to this request, on 7 September 2021 the government announced a new 1.25% Health and Social Care Levy to fund investment in the NHS, health and social care. The Levy is effectively introduced from April 2022 when National Insurance contributions for employees under State Pension age, self-employed people and employers will increase by 1.25 percentage points and be added to the existing NHS funding allocation.
From April 2023, the Levy will be formally separated from National Insurance contributions and will also apply to the earnings of individuals working above State Pension age. National Insurance contribution rates will then return to 2021 to 2022 levels and receipts from the Levy will go directly for spending on health and social care.
Thank you for your co-operation
4. The National Cyber Security Centre (NCSC)
The UK’s technical authority on cyber security, have issued guidance for organisations on the steps they need to take to bolster the UK’s resilience against the heightened risk of malicious cyber incidents in and around Ukraine. We know many organisations and businesses in the UK have well laid out plans and good cyber security measures in place. However due to the nature of online global networks, attacks that occur overseas could have an impact on UK institutions, services and systems. This is why organisations and businesses are being urged to take action now.
While the NCSC is not aware of any current specific threats to UK organisations in relation to events in and around Ukraine, the guidance encourages organisations to follow actionable steps that reduce the risk of being impacted by cyber attacks, including:
- patching systems.
- improving access controls and enabling multi-factor authentication.
- implementing an effective incident response plan.
- checking that backups and restore mechanisms are working.
- ensuring that online defences are working as expected. and
- keeping up to date with the latest threat and mitigation information.
For further information visit: https://www.ncsc.gov.uk/guidance/actions-to-take-when-the-cyber-threat-is-heightened where you will find the relevant advice, actions and resources.
If you have any questions, please contact firstname.lastname@example.org who will be happy to assist.
5. Dismissal for refusing COVID-19 vaccination fair.
Allette v Scarsdale Grange Nursing Home Ltd, Leeds Employment Tribunal
An employment tribunal finds that the dismissal of a care home employee for refusing to be vaccinated against COVID-19 in January 2021 was not unfair. Although the tribunal accepted that the employee’s fear of and scepticism about the vaccine was genuine, the requirement to be vaccinated was a reasonable management instruction and she had no reasonable grounds for refusing. In so holding, the tribunal finds that, while the dismissal was an interference with the employee’s right to respect for private life under Article 8 of the European Convention on Human Rights, that interference was justified by the pressing social need to reduce the risk to the care home residents.
Tribunal finds no breach of Article 8
The employment tribunal rejected both claims. It considered first whether A’s rights under Article 8 ECHR had been breached. The tribunal accepted that SGNH Ltd had a primary legitimate aim of protecting the health of staff, residents and visitors, and a secondary aim of not risking a breach of its insurance policy. In the tribunal’s view, the mandatory vaccination policy corresponded to a pressing social need to reduce the risk to residents. The tribunal accepted that an employer’s instruction that an employee must be vaccinated, unless the employee has a reasonable excuse, interferes with the employee’s physical integrity in a manner capable of engaging Article 8.
In order to keep her job, A was required to have the vaccine, and that was an interference with her physical integrity, to which she objected. However, the interference with A’s private life was necessary in the circumstances. The requirement for staff to be vaccinated against COVID-19 corresponded to a pressing social need to reduce the risk to the residents, who were among those most vulnerable to severe illness and death. The risk to residents was evident from the state of the pandemic in early 2021, the history of outbreaks in nursing homes during 2020, and the recent outbreak at the home itself.
The tribunal considered that the Article 8 rights of the residents, the other staff and any visitors to the home had to be balanced with A’s Article 8 rights. While A’s fear of and scepticism about the vaccine was genuine, it was unreasonable because she had no medical authority or clinical basis for not receiving the vaccine. Balanced against this, SGNH Ltd was a small employer with a legal and moral obligation to protect its vulnerable residents. Its residents suffered with dementia, and some may not have had the capacity to exercise choice over matters such as whether they came into contact with unvaccinated people, resided at the home or left. As such, an unvaccinated person working in the home would pose a significant and unjustified interference with the Article 8 rights of the residents, the other staff and visitors. SGNH Ltd’s requirement for A to be vaccinated was therefore justified.
6. Recovering overpayments of wages and expenses
Mistakes can be made in remunerating employees. Hopefully, few of these will be on the scale of the Italian public sector worker who was reported in 2021 as having been paid for 15 years
of absence. Where an employee is underpaid, the shortfall can easily be rectified. However, recovering pay from an employee who has been overpaid can be more complicated. This feature examines the options available to an employer who wishes to recover an overpayment of wages or expenses from an employee or former employee, including the exception from the unauthorised deductions from wages regime, which allows employers to recover overpayments by making deductions from future payments owed to employees.
Where an employer has unintentionally overpaid a worker, it may have several options as to how to recover the overpayment, depending, among other things, on whether or not the worker is still employed. An ‘overpayment’ is
a payment to which the worker is not entitled at the time it is made, such
as a payment made as a result of an administrative error, a payroll processing delay, or even fraud by the worker. However, it does not include a payment that a worker is entitled to at the time that it is paid, but which the worker has to, or may have to, repay to the employer later (for example, a loan or a bonus that is subject to clawback).
Reason for the overpayment
The overpayments exception in S.14 ERA applies regardless of the reason why
the employer overpaid the worker. The exception specifically applies to an overpayment ‘made (for any reason) by the employer’. For instance, an overpayment could be the result of an administrative error, or a change to the worker’s salary that cannot be processed in time before the worker is paid – for example, where a worker does not attend work for any reason and so is entitled to no pay or only part of his or her normal wages for that day.
What are wages?
As indicated, to fall within the protection of wages regime, and thus the S.14 overpayments exception, a deduction must be made from a worker’s ‘wages’, in respect of an overpayment of wages or expenses. The term ‘wages’ is defined widely in S.27(1) ERA and includes any sum payable to the worker in connection with his or her employment. S.27(1) and (3) goes on to list certain types of payments that are specifically included, and S.27(2) and (5) lists a number of payments that are specifically excluded are listed below.
Payments included in the definition of wages in the ERA:
- any fee, bonus, commission, holiday pay or other emolument referable to the worker’s employment, whether payable under the contract or otherwise – S.27(1)(a)
- statutory sick pay: statutory maternity pay; statutory paternity pay; statutory adoption pay; statutory shared parental pay; and statutory parental bereavement pay – S.27(1)(b)–(cd)
- certain statutory payments paid in lieu of wages. These include guarantee payments; payments for time off to look for work or to arrange training; payments for time off for antenatal care and to accompany someone to antenatal care; and payments for time off for trade union duties – S.27(1)(d)–(e)
- sums paid during suspension on medical grounds or maternity grounds under Ss.64 and 68 ERA – S.27(1)(f)
- remuneration on ending the supply of an agency worker on maternity grounds under S.68C ERA – S.27(1)(f)(a)
- sums payable pursuant to orders for reinstatement or re-engagement made by the employment tribunal – S.27(1)(g)
- any sum payable pursuant to an order for the continuation of an employment contract under the interim relief provisions in S.130 or in a trade union-related dismissal under S.164 of the Trade Union and Labour Relations (Consolidation) Act 1992 – S.27(1)(h)
- remuneration under protective awards made under the redundancy consultation provisions of the TULR(C)A – S.27(1)(j)
- payments in the nature of a non-contractual bonus – S.27(3).
Payments excluded from the definition of wages in the ERA:
- advances of wages or payments under a loan agreement between the worker and employer. However, S.13 ERA will apply to any deduction made from the worker’s wages in respect of any such advance – S.27(2)(a)
- payments in respect of expenses incurred by the worker in carrying out his or her employment – S.27(2)(b)
- payments by way of a pension, allowance or gratuity in connection with the worker’s retirement or as compensation for loss of office – S.27(2)(c)
- payments in relation to the worker’s redundancy – S.27(2)(d)
- any payment to a worker otherwise than in his or her capacity as a worker – S.27(2)(e)
- benefits provided to the worker, unless they are a voucher, stamp or similar document and can be exchanged for money, goods or services – S.27(5).
7. Nine ways to deal with workplace stress!
Our partner Breathehr have published an article over nine ways to deal with workplace stress. You can view this article here.
Are you aware how your employees are dealing with stress at work? We can help you carryout a workplace survey. You can contact us here to arrange an appointment or call us on 07375 097443 to discuss.