BOND ADAMS EMPLOYMENT UPDATE by Dispute Resolution Partner, Rafique Patel
The national minimum wage for workers aged under 25 but at least 21 rises to £6.95 per hour. The rate for workers aged at least 18 but under 21 is raised to £5.55 per hour; the rate for workers aged under 18 who are no longer of compulsory school age goes up to £4.00 per hour; and the apprentice rate increases to £3.40 per hour.
The changes were applied on 1 October 2016. The national living wage, the national minimum wage rate for workers aged 25 or above, is unaffected.
But this is the last time to expect minimum wage hikes in the autumn. Future changes to the national minimum wage and the national living wage will take place at the same time in April each year, from April 2017.
National Minimum Wage and National Living Wage
The National Minimum Wage (NMW) is the minimum pay per hour most workers are entitled to by law. The rate will depend on a worker’s age and if they are an apprentice.
The National Living Wage
The Government’s National Living Wage was introduced on 1 April 2016 for all working people aged 25 and over, and is set at £7.20 per hour. The current National Minimum Wage for those under the age of 25 still applies.
- Most workers over school leaving age will be entitled to receive the NMW.
- The NMW /NLW rate is reviewed annually by the Low Pay Commission.
- HM Revenue & Customs (HRMC) can take employers to court for not paying the NMW/NLW.
- There are a number of exemptions to those who receive the NMW/NLW. These do not relate to the size of the business, sector, job or region.
- The compulsory National Living Wage is the national rate set for people aged 25 and over.
Rates of pay
It is important to note that these rates, which came into force 1 October 2016, apply to pay reference periods beginning on or after that date.
The rates from 1 October 2016 are:
- £7.20 per hour – 25 yrs old and over
- £6.95 per hour – 21-24 yrs old
- £5.55 per hour 18-20 yrs old
- £4 per hour – 16-17 yrs old
- £3.40 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
The rate will then change every April starting April 2017.
The rates from 1 October 2015 were:
- £6.70 for workers 21 and over
- £5.30 18-20 yrs
- £3.87 for 16-17 yrs, who are above school leaving age but under 18
- £3.30 for apprentices under 19 or 19 or over who are in the first year of apprenticeship.
Minimum Wage and National Living Wage – an overview
The new pay rate will only affect someone’s pay from the first full pay reference period after that date.
If the Pay Reference Period starts on the 19 March – 19 April- the pay between the 1 April – 18 April will be based on the NMW rates- The allocated pay from the 19 April – 19 May would be at the new NLW rate because this is the first full pay reference period after the 1 April.
The same rules apply when a monthly paid employee reaches the age of 25. For example if the employees birthday falls on the 25 May and the next pay reference period starts on 10 June, the employee is entitled to receive the NLW pay rate on the 10 June and not their birthday.
There are a number of people who are not entitled to the NMW/NLW.
- Self-employed people.
- Volunteers or voluntary workers.
- Company directors.
- Family members, or people who live in the family home of the employer who undertake household tasks.
All other workers including pieceworkers, home workers, agency workers, commission workers, part-time workers and casual workers must receive at least the NMW.
Agricultural and horticultural workers in England employed after 1st October 2013 must be paid the appropriate NMW rate (see above).
Workers who were already employed before 1 October 2013 will still be entitled to the same terms and conditions set under their contract of employment; this may include overtime rates, agricultural wages, sick pay or dog allowance. DEFRA will continue to enforce complaints made by workers in respect of underpayments or non-compliance with terms and conditions of an Agricultural Wages Order before 1 October 2013 for up to six years after the breach occurred.
For agricultural workers in Scotland there is no change, and in Wales workers must be paid at least the Agricultural Minimum Wage, or the NMW if that’s higher.
Family member exemption
For this exemption to apply, workers must either be a member of the employer’s family, or live in the employers’ family home.
Either the worker is a member of the employer’s family and:
- resides in the family home of the employer
- shares in the tasks and activities of the family.
Or the worker resides in the family home of the employer, and:
- is not a member of that family, but it treated as such (in regards to the provision of living accommodation, meals and the sharing of tasks and leisure activities)
- is neither liable to any deductions, nor to make any payment to the employer, or any other person, as respects the provision of the living accommodation or meals.
- if the work had been done by a member of the employer’s family, it would not be treated as work.
Non-payment of the NMW
It is against the law for employers to pay workers less than the National Minimum Wage or to falsify payment records.
If an employer doesn’t pay the correct rate, a worker should talk to their employer and try to resolve the issue informally first. If this doesn’t work a worker may make a formal grievance to their employer.
A worker can make a complaint to HMRC who will investigate the complaint. If HMRC find that an employer hasn’t paid at least the National Minimum Wage, they can send a notice of arrears plus a penalty for not paying the correct rate of pay to the worker.
Penalties for failure to comply with the National Living Wage
With the introduction of the National Living Wage the penalty for non-payment will be 200% of the amount owed, unless the arrears are paid within 14 days.
The maximum fine for non-payment will be £20,000 per worker. However, employers who fail to pay will be banned from being a company director for up to 15 years.
The difference between the National Living Wage and the Living Wage
The new National Living Wage is different from the Living Wage, which is an hourly rate of pay and updated annually. The Living Wage is set independently by the Living Wage Foundation and is calculated according to the basic cost of living in the UK. Employers choose to pay the Living Wage on a voluntary basis.
Working Time Directive – Mobile workers – September 2015
The European Court of Justice in a case gave the judgement that mobile workers who have no fixed place of work, and spend time travelling from home to the first and last customer, should have this time considered as working time. The Court add that because the workers are at the employer’s disposal for the time of the journeys, they act under their employer’s instructions and cannot use that time freely to pursue their own interest.
For advice on all aspects of employment law including representation in the employment tribunal, representation in the Employment Appeal Tribunal and the courts, contact our partner Rafique Patel on firstname.lastname@example.org