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

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

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

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

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

  1. The reason for engaging the worker: if an employee is on site to comply with a regulatory or contractual obligation, then the individual is more likely to be classed as working throughout their whole shift, even if they are asleep or with nothing to do.
  2. Restrictions on the worker’s activities: if a worker would be disciplined for failing to remain on stand-by, for example by leaving the premises, then the NMW is more likely to apply than in situations where someone can come and go as they please.
  3. The degree of responsibility: if a worker is required to keep a listening ear and respond, such as a care worker, they are more likely to be treated as ‘working’ than someone who is at home on-call.
  4. The immediacy of the requirement to provide services: this includes both the speed and the level of responsibility of a worker. If they are the one who will decide whether to intervene and then take the action, they are more likely to be categorised as working than someone who is woken and instructed by the responsible member of staff.

Our employment lawyer, Karen Cole noted:

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

The National Living Wage is a premium tier of the NMW for eligible workers aged over 25.

For those eligible workers aged under 25, there are further categories of age-related rates. Since April 2017:

  • 25 and over – £7.50
  • 21 to 24 – £7.05
  • 18 to 20 – £5.60
  • Under 18 – £4.05
  • Apprentice – £3.50

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

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

Contacts

Karen Cole

Karen Cole Photo

Stay in touch

Subscribe to our newsletter

Stay in touch
Sending

News/Insight

  • Leasehold loopholes to look out for
    The subject of the UK’s ‘housing crisis’ is a firm favourite with the British press, and the media’s current scrutiny of ‘all matters housing’ has recently thrown a fairly obscure property law, intended to protect homeowners, into the spo

    Read more
  • A new class of limited partnership for private funds
    The Private Fund Limited Partnership (PFLP) is a new sub-category of limited partnership which came into existence earlier this year. It aims to redu

    Read more
  • Where there’s a will, there’s a way
    When thinking of making a will, the idea of a Victorian lawyer taking down the last instructions at the bedside still springs to mind for many people.

    Read more
  • Gender pay likely to stay in the spotlight
    The BBC found itself in a media storm last month, following the publication of salaries paid to its highest-earning stars, which revealed that only one-third of its 96 top earners were women, and the top seven were all men. Since then, staff at the F

    Read more
  • Supreme Court rule Employment Tribunal fees are unlawful
    UNISON sought judicial review of the Fees Order because it unlawfully prevents/restricts access to justice.

    Read more

What clients say...

Professional Negligence: Qaiser Khanzada and Steven Barker went out on a limb for me 30+ years ago and I'll never forget that.

Zak Jaggard:
September 2017

Professional Negligence: Qaiser and Steve’s dedication and professionalism guided me safely through a legal minefield, and went well beyond a solicitor's remit. They care - and to this day I think of them as family.

Zak Jaggard:
September 2017

Personal Injury: Knowing our daughter was with RBG was hugely reassuring for both my wife and I. We knew one of our family was in safe hands with the RBG family, so again, thank you.

Zak & Fru Jaggard:
September 2017

Employment: I found Karen Cole to not only be engaging but extremely helpful, knowledgeable and professional, I would use her again should the need arise.

August 2017

Employment: I spoke with Karen Cole regarding an issue I had with a client and payments. Karen came up with a solution very quickly and a resolution was concluded within 14 days.

August 2017

Family: "As a novice in legal matters, Mr McMullan and his staff were always ready to help me in a complex case."

June 2017

Commercial: Ben Brownscombe provided me with excellent advice. He was easy to communicate with, he was able to explain the implication of each clause and very reliable.

May 2017

Employment Law : "Karen provided invaluable guidance and support throughout the process and I wouldn't hesitate to recommend her services in this field."

May 2017

Private Client: I am very satisfied with [RBG's] services as I was in London for a very short visit but managed to arrange an appointment to see one of your partners who was able to help explain and complete the matter in question.

Eman Kassem:
April 2017

The advice and service that was given to us was invaluable to our business and [we] would use and recommend Karen Cole for her professional, clear and prompt service.

Sally Lusher, GO-Coach Hire Ltd:
January 2017

Lawnet ISO 9001 Quality Standard Logo
Quality Conveyancing Scheme Logo
Lawnet Logo
Eurojuis International Logo

Corporate: Extremely knowledgeable and able to convey this knowledge clearly and concisely. Would definitely recommend.

Stephan Buxton:
February 2017

Corporate: Excellent experience of working with Veronica and the team. Always friendly and approachable.

Stephan Buxton:
February 2017

Corporate: RIAA Barker Gillette made the company both investable to Business Angels and overall commercially viable.

Niall Haughian, CFA: Chief Operating Officer:
February 2017

Corporate: RIAA Barker Gillette has taken my start-up company that lacked structure and provided us with sound legal and business advice.

Niall Haughian, CFA: Chief Operating Officer:
February 2017

Corporate: Solaris Photonics is truly grateful for the tremendous professional effort undertaken by the RIAA Barker Gillette team.

Niall Haughian, CFA: Chief Operating Officer:
February 2017

Company Commercial: [Veronica] used her expertise to suggest crucial additions that gave additional benefits to my business interests, that I had not even considered.

S. Arnold:
February 2017

Company Commercial: Excellent service and I wouldn't hesitate to use Veronica again and recommend her.

S. Arnold:
February 2017

Company Commercial: The contracts my business required were complex. Veronica was efficient, friendly and took the time to ensure everything we needed was covered.

S. Arnold:
February 2017

Residential Property: Simon is always helpful, clear and meticulous. I always feel that he has our best interests at heart.

M. Orteu:
January 2017

Dispute Resolution: Alex “really protects his clients to the best of his ability. I would not hesitate to recommend him. Excellent manner with clients and highly gifted.”

Morris Nourani, Hastings International:
December 2016

Dispute Resolution: Alex Deal is a “very bright, hardworking individual inside and outside working hours.”

Morris Nourani, Hastings International:
December 2016

Dispute Resolution: Alex Deal “attains a very sharp grasp of extremely complicated issues including cross border commercial matters.”

Morris Nourani, Hastings International:
December 2016

Dispute Resolution: Alex Deal “is, simply, in a class of his own. Focused, dedicated and genuinely caring about his clients, he excels in getting into every tiny detail quickly.”

Morris Nourani, Hastings International:
December 2016

Wills, tax and trusts: “We were always happy with the service from James McMullan.”

Josephine Sullivan:
December 2016

Steven Barker gave us his personal attention no matter how small the detail.

Mr J Patel:
December 2016

We are very thankful to Steven Barker for helping us out on our difficult times, and being there for us whenever he was required.

Mr J Patel:
December 2016

Laura St-Gallay, Dispute Resolution: “Fees have in all cases been very reasonable and I have very much appreciated the responsiveness of the team when I have needed advice at short notice.”

Peter Scholes:
October 2016

Laura St-Gallay, Dispute Resolution “The advice I received was helpful and timely, and a satisfactory settlement was reached quickly in large part due to the high quality of the advice given.”

Peter Scholes:
October 2016

Alex Deal, Dispute Resolution “I would not hesitate to recommend the Firm for any matters relating to litigation/dispute resolution or employee/partnership law matters (where Alex has previous provided valuable advice).”

Peter Scholes:
October 2016

Dispute Resolution: Alex Deal and Laura St-Gallay responded immediately to my request for assistance even though the amounts at stake were relatively small.

Peter Scholes:
October 2016

Stuart Jacobs, Property Litigation: “It was very important for us to feel confident and be cost efficient with our legal case.”

Loretta Martinelli:
October 2016

Laura St-Gallay, Property Litigation “The numerous changes were well understood and have been taken on board each time we changed our mind on our strategy.”

Loretta Martinelli:
October 2016

Laura St-Gallay, Property Litigation “The matter was dealt with in a very kind and calm manner while keeping us informed of the cost implications throughout.”

Loretta Martinelli:
October 2016

Stuart Jacobs, Property Litigation “The firm was very understanding and patient with our request and regular requirements for explanations and changes.”

Loretta Martinelli:
October 2016

Jodi Newton: We received very good advice from the very first phone call and a fully professional approach which enabled us to deal with every aspect of a demanding and potentially damaging process.”

Alan Syrop:
October 2016

Jodi Newton, Personal Injury “A wonderfully personal and supportive service.”

Alan Syrop:
October 2016

Wills, trusts and tax: James went above and beyond in looking after the entire process.

Ian Cuthbertson:
July 2016

Criminal Defence: Simon “I would not hesitate to recommend [RIAA Barker Gillette], I do not think I could have done any better, they have my eternal thanks and gratitude.”

Rob Meekcoms:
June 2016

Criminal Defence: “Steve and his team were absolutely brilliant, they supported me through the toughest times I have ever been through.”

Rob Meekcoms:
June 2016

Commercial Property - Simon Levi: "Very satisfied and happy with the results and professional communication of Mr Levi during the legal process. I will definitely use RBG again in the near future and will highly recommend Mr Levi to all my friends and relatives." 

 Eran Ezra, ...

“I was very happy with Jodi Newton, who, despite having a complicated case, came through with a satisfactory conclusion. I felt safe in her hands.”

 Britt Poole, September 2016

“Vinay Verma demonstrated exceptional professionalism and sensitivity from start to finish.”

Mr I C and Ms N K

“I was extremely satisfied with all aspects of the service. Veronica was extremely personable and she made me feel very comfortable when dealing with an unfamiliar situation.”

Vanessa Lorenz

“Both Alex and Veronica have been extremely professional and easy to work with.They know how to listen to your needs and are helpful in giving advice.”

Susan Keese, Director

“Alex and Veronica talk things through with you (not at you like many solicitors!) in a language you can understand and ensure that your needs are fulfilled.”

Susan Keese, Director

“Veronica Hartley is a very capable solicitor who acted for me on an important and complex case which ultimately had a satisfactory conclusion.”

Stephen Deverell, Chairman

“Veronica Hartley was extremely friendly and informative. Complex legal terms were explained in an easy to understand manner.”

Peter Low

“I was left feeling comfortable that Veronica had my best interests at heart and a lot of stress and worry was taken away as soon as we began speaking to her.”

Peter Low

“I found Veronica to be professional, conscientious and able to maintain a healthy balance between following our commercial instructions with that of focused legal advisor.”

Gary Watts

“Not only is Veronica excellent at her job she is also very genuine and a pleasure to deal with.”

Deborah Haw, Director

“After several bad experiences with other solicitors it was such a pleasure to have Veronica look after our interests in the UK.”

Deborah Haw, Director

“Whatever questions and problems we put in front of Veronica she seems to resolve with ease. I cannot recommend her more highly.”

Deborah Haw, Director

“Relaxed and personable working.”

Damian Griffiths

“I really appreciated all the hard work Jodi did on this case. I have had a lot of dealings with solicitors over the past few years and Jodi is certainly one of the best.”

Sherrie Bogle

“Jodi’s judgement and advice was always sound. I cannot recommend her highly enough.”

Sara Newman

“Jodi Newton is an incredible ally and an accomplished lawyer. The sum she won on my behalf exceeded expectations four fold.”

Sara Newman

“I would recommend Jodi for her legal expertise in personal injury and dental negligence claims as well as her accessible and supportive approach.”

Sandra K

“Jodi was approachable, gave clear and detailed advice throughout and achieved a successful settlement in a short period of time despite facing a challenging opponent.”

Sandra K

“We discovered terminal lung cancer that had not been spotted on the X-ray. Jodi was very compassionate, made home visits, and secured a compensation payment for the family.”

Rafic Kazan

“Jodi was knowledgeable, patient and sensitive, securing the costs of a very successful operation and compensation that helped my employee move forward with her life.”

Rafic Kazan

“Jodi’s handling of our traumatic case - clarity of communication, choice of barrister and medical expert - was brilliantly resourceful and reassuring from start to finish.”

Julian Forsyth

“After contacting several well-known, nationally advertised law firms who would not represent me, I approached Jodi who successfully obtained generous compensation for me.”

Geoffrey Henshaw

“Jodi was immediately sympathetic and listened carefully to the details of my accident. Determining responsibility proved difficult but Jodi persisted successfully.”

Geoffrey Henshaw

“Jodi Newton never gave up and persevered right until the very end, creating a case that the defendant had no option but to settle. It felt more like a family than a law firm.”

Cedric Bloch

“I was incredibly impressed with the high level of legal advice and client service. Jodi's vast legal experience and knowledge meant any issues I had were dealt with.”

Angela Simpson

“James was throughout very kind, calm and polite which makes him in my view the perfect divorce lawyer.”

Mrs A K

“James dealt with all my emails and phone calls extremely efficiently.”

Mrs A K

“James McMullan is a very professional lawyer and I always felt that he advised me very well and importantly very realistically. ”

Mrs A K

“James assisted me with my difficult divorce this year. He was professional and supportive at all times. I could not recommend him highly enough.”

Madeline Fleming

“Friendly and professional.”

Jonathan Pullum

“My solicitor is excellent. I have not really dealt with anyone else but calls to the office are fine.”

Jerry Morgan

“Patience, understanding, concern, compassion, expediency”

Jeffrey Lambert

Carly Aitchison Kept me informed all the time.

Ritagate Ltd

“We have the highest regard for the expertise and client commitment they demonstrate. They are responsive, conscientious and always go the ‘extra mile’.”

Stuart Leaman

“Alex's mind is skilled, brilliant and tactical in all of his dealings, especially if so required in court, his solution is pragmatic and commercial.”

Tony Muskat at AS MUSKAT

“As a client, I have always felt in safe hands and it has always been my pleasure to work with Alex.”

Tony Muskat at AS MUSKAT

“Alex provides sound, considered advice and has the ability to analyse and appraise the merits of any case, with the best interests of his client always in mind.”

Tony Muskat at AS MUSKAT

“I first used Alex's legal expertise in 1999 and was immediately impressed by his ability and have continued to rely on him for all my legal matters in the UK ever since.”

Tirapongse Pangsrivongse

“I have total confidence in the other members of the firm that Alex has introduced me to such as Veronica. I cannot recommend Alex more highly and have trust in all his advice.”

Tirapongse Pangrivongse, Chairman

“Alex Deal and his team have provided us with incisive and timely advice over a number of years. His help in employment matters has minimised our exposure.”

Robert Macdonald, Chairman

“Alex always bears commerciality in the forefront of his mind when giving direct and concise advice. We have been happy to recommend him widely.”

Robert Macdonald, Chairman

“For over 15 years, Alex is the first person I turn to with a legal problem.He is responsive, sharp and most importantly invariably right - about the sharpest legal mind.”

Kam Takhar

“Alex's rigorous legal advice has often helped our company avoid protracted legal disputes. Alex offers tremendous external support to our in-house legal and HR teams.”

Jose Miguel Echenagusia,
Vice President Legal Services

“Alex stands out for his sound business judgment, profound knowledge of the law and pragmatic approach to the resolution of disputes.”

Jose Miguel Echenagusia,
Vice President Legal Services

“Our company has used Barker Gillette for many years. Alex and his team have always acted in our best interests offering a prompt, effective and responsive service.”

Jose Miguel Echenagusia,
Vice President Legal Services

I have been a client of the firm for many years and have found them extremely supportive and kind in very difficult circumstances.

Vinayak,Chairman

“Looking at the best needs for the client and tailoring advice to that.”

About us