Employment Bulletin – October 2017

Up to 1 in 5 minimum wage workers 'could be underpaid'

Up to 1 in 5 minimum wage workers may be receiving less than their legal entitlement, according to research by the Low Pay Commission (LPC).

Between 305,000 and 580,000 people could be affected. Most of them are female, part-time and hourly paid. Thousands of salaried workers are also receiving less than the National Living Wage.

The LPC is now urging the government to put more resources into enforcing the regulations to ensure workers receive their full legal entitlement. Its report highlights several key findings:

• Underpayment is highly seasonal throughout the year. It is highest immediately after an uprating of the minimum wage, when as many as 1 in 5 low-paid workers (those paid at or below the National Living Wage) aged 25 and over may be paid less than their entitlement.
• In the 3 to 6 months that follow an uprating of the minimum wage, levels of underpayment fall significantly.
• Underpayment of the National Living Wage and Minimum Wage is very difficult to measure. Statistics are difficult to interpret and the worst cases of exploitation of workers are almost certainly hidden.
• Many salaried workers (those who are paid monthly and don't have a stated hourly rate) are paid less than the minimum wage. They make up 11% of people paid at the NLW but 44% of those paid below it.
• Recent developments in the government's enforcement of compliance, and communications regarding the National Living Wage have led to real successes - record numbers of underpaid workers and arrears have been identified. Government enforcement investigations found arrears of £10.9m for 98,000 workers in 2016/17 compared to £3.3m for 26,300 workers in 2014/15. But there are areas where the Government could go further.

The Chair of the Low Pay Commission Bryan Sanderson said: "The LPC welcomes the recent increases in funding for HMRC's enforcement of the minimum wage, and recognises the progress it has made.

"However, we also think there is more the Government could do to identify non-compliance and stop it happening in the first place."

Engineer wins appeal against employer monitoring his emails

An engineer who was dismissed after his employer monitored his emails has won his appeal that his right to privacy had been breached.

The case involved a Romanian company that set up an IT system and Yahoo messenger account to enable employees to send work-related emails. It was against company policy to use the systems for private correspondence.

However, one engineer, Mr Barbelescu, regularly shared private messages with his friends, family and fiancé. The company became aware of his behaviour and started to monitor his emails. He was later dismissed.

He claimed that the company had infringed his human rights by invading his privacy.

The ECHR ruled against him. It held that in this case the monitoring of his private emails was a "proportionate interference" with his right to privacy.

Mr Barbelescu appealed and the Grand Chamber of the ECHR has now found in his favour. It held that the key point in the case was that an employee's private life at work cannot be reduced to zero.

The Romanian courts had not given enough weight to important points such as whether Mr Barbelescu had received notice of the monitoring or whether the employer had established legitimate reasons for the monitoring, or considered less intrusive alternatives.

The case highlights the need for companies to have policies in place outlining their approach to the use of company systems for private use. If even limited monitoring is to take place, staff should be informed in advance.

The employer had not achieved the right balance between its right to uphold workplace discipline and the employee's right to privacy.

Postman awarded £22,000 after his flexible hours were changed

A postman has been awarded £22,000 compensation after his arrangement to work flexible hours was altered without his agreement.

The Employment Tribunal heard that an employee had worked for Royal Mail for more than 20 years. Following his divorce in 2012, he requested that he should only work Monday to Friday to enable him to look after his children at weekends.

The request was granted and the terms of his contract were changed to state that he didn't have to work Saturdays.

However, in 2015, restructuring took place and the employee was rostered to a shift pattern that meant working some Saturdays. The change took place while he was on holiday and without his knowledge.

He made a second request for flexible hours.

This was rejected on the grounds of cost and that it would have a detrimental effect on overall performance.

He resigned and claimed constructive dismissal on the basis that the change to his working pattern undermined his trust in the company to the point where he could not continue his employment.

The tribunal found that Royal Mail had breached the employee's contract.

The Judge upheld his claim of constructive unfair dismissal and awarded him £22,000 compensation.

Dismissal of surgeon following 20-month absence ruled unfair

The dismissal of a surgeon who took 20 months' unauthorised absence after falling out with colleagues has been ruled unfair.

The case involved a consultant neurosurgeon whose relationship with other medical staff broke down after they made allegations against each other.

The issue arose as he was about to take four month's unpaid leave as part of his contract arrangement. However, due to the toxic atmosphere in his department, he did not return to work when scheduled and took another 20 months' unauthorised leave.

He was dismissed in November 2014. The surgeon responded by claiming unfair dismissal because the trust had failed to engage with him to bring about a return to work.

He said it had not taken account of the reason why he had not returned to work, which was that his health and safety, and potentially that of his patients, would be endangered if he returned without the trust addressing the allegations made against him by colleagues.

The Employment Tribunal accepted that the trust had a genuine belief that the surgeon's unauthorised absence was misconduct but it was not within the band of reasonable responses to dismiss him for that.

The Employment Appeal Tribunal has upheld that decision. It held that once a fair and reasonable observer appreciated that there was considerably more to the history of the case than a dismissal for 20 months' unauthorised absence, he would not find the decision surprising.