Legal Q&A

Parental leave Parental leave (meaning unpaid parental leave, and not to be confused with Shared Parental Leave) is regulated by the Maternity and Parental Leave etc Regulations 1999 ( MAPLE Regs 1999), SI 1999/3312. The default position under the MAPLE Regs 1999, SI 1999/3312, Sch 2, requires employees to: give notice of their intention to take parental leave, specifying the dates the leave will begin and end; and give at least 21 days’ notice of the date on which the parental leave is to start. MAPLE Regs 1999, SI 1999/3312, Sch 2, also sets out that the minimum period of leave that can be taken at any one time is a week, and that leave must be taken in weekly blocks, not individual days (assuming the child in question is not disabled)......

UPDATE: Since this Q& A was first posted on 6 April, HMRC’s employer guidance, Claim for your employees’ wages through the coronavirus job retention scheme, together with the employee guidance, Check if your employer can use the coronavirus job retention scheme (initially issued on 26 March and amended on 4 April), were updated again on 9 April and 15 April 2020. The government also released a Treasury Direction on 15 April. For details of the revisions made on 4, 9 and 15 April 2020, and for the Treasury Direction, please see the following News Analyses: HMRC publishes updated employer and employee guidance on Coronavirus ( COVID-19) job retention scheme HMRC publishes second update to employer and employee guidance on Coronavirus ( COVID-19) Job Retention Scheme Treasury gives legal effect to Coronavirus Job Retention Scheme and updates guidance a third time For...

A Post- Employment Notice Pay ( PENP) calculation It uses a set calculation that lets employers identify the taxable portion of a severance package on termination of employment when the basic salary actually paid falls short of what would have been earned had proper or full notice been worked. The method takes basic pay, multiplies it by the remaining notice days, then divides by the number of days in the relevant pay period, before deducting in full any amounts paid net of tax, except for holiday pay and termination bonuses. The requirement to perform a PENP calculation stems from reforms that took effect from 6 April 2018, making all such payments in lieu of notice chargeable to tax and national insurance......

Duty to participate in education and training until age 18 in England Sections 1 and 2 of the Education and Skills Act 2008 ( ESA 2008) impose a duty on individuals in England to take part in education or training where they: are beyond compulsory school age have not yet turned 18, and have not achieved a ‘level three qualification’ (two A-levels, or other broadly comparable qualifications) Accordingly, anyone whose highest attainment is at level 2 must remain in education or training until they reach 18. This duty can be satisfied by the person choosing to: be in suitable full-time education or training participate in training under a contract of apprenticeship or an apprenticeship agreement, or be in full-time employment and undertake sufficient relevant education or training during each relevant period (as defined) Note that ESA 2008, ss 19–39, which would place...

Where an employer provides less notice of termination than is required under the employment contract (or none at all), they will have ended the employee’s employment in breach of the contract of employment; in other words, this will constitute a wrongful dismissal......

The Equality Act 2010 ( Eq A 2010) The Equality Act 2010 ( Eq A 2010) sets out measures to secure equality between men and women in pay and other employment terms where an employee’s work matches that of a comparator of the opposite sex. It accomplishes this by implying a sex equality clause into the employee’s contract of employment, ensuring that the contract reflects the comparator’s terms. This mechanism is intended to guarantee parity of conditions between the employee and their comparator......

The approach an employer should take to confirm whether the sums it pays a worker comply with the national minimum wage requirements is explained, in particular, within the relevant section of the Practice Note: National minimum wage entitled National minimum wage — Checking pay against the minimum......

First West Yorkshire Ltd t/a First Leeds v Haigh The EAT found that fairness means a reasonable employer must give genuine consideration to any ill‑health retirement scheme before dismissing for long‑term sickness, consistent with overall fairness. In particular, where an employer offers an enhanced pension on retirement due to ill health, it will be expected to take reasonable steps to determine whether the employee is eligible for the benefit of ill‑health retirement under the relevant scheme in question......

The Employment Rights Act 1996 ( ERA 1996) permits an employer to make a deduction from a worker’s ‘wages’ (as defined in ERA 1996, s 27) if: a statutory provision requires or authorises the deduction to be made, for example the obligation to deduct income tax or National Insurance contributions through Pay As You Earn ( PAYE); a relevant term of the worker’s contract permits such a deduction, for instance where the employer has advanced a loan and holds a contractual right to recover money from the worker’s wages in repayment; the worker has already confirmed in writing their agreement or consent to the deduction being taken For further information, see, generally, Practice Note: Deductions from wages, and in particular the principal section covering the topic ' When deductions are lawful'......

The nature of pay and wages The heart of employment is payment in exchange for work: an employer has a duty to pay wages whenever the employee is ready, willing and able to perform, and this generally applies even if there is no work available at the time. As Lord Templeman explained in Miles v Wakefield MDC, work and wages are mutually dependent: the employer pays for work, and the worker provides labour for pay. If the employer refuses to pay, the worker need not work; if the worker refuses to work, the employer need not pay. To succeed in a claim for wages, the worker must assert, and be prepared to prove, that he worked or was willing to work The contractual framework must also be taken into account. Different treatment may arise where work is not done because of sickness, injury or another...

The answer turns on: what the contract of employment says about bank or public holidays whether any right is contractual rather than statutory, and whether the contract bars payment in lieu of contractual leave on termination Whether there is a right to bank or public holidays Under the Working Time Regulations 1998 ( SI 1998/1833), workers get 5.6 weeks’ paid leave a year: four weeks plus 1.6 weeks. There is no statutory right to paid time off on public or bank holidays; this depends on the contract’s express or implied terms ( Campbell & Smith v Greenwood). If an employer specifies “ X days plus bank and public holidays”, that creates a contractual right, including any extra bank holidays announced that year. Effect of sickness absence If bank holidays fall within the 5.6‑week statutory pot, any that coincide with sickness accrue and can be taken later. If bank...

For the purposes of the Employment Rights Act 1996 ( ERA 1996), an individual’s employment with a specific employer is assumed to have been continuous unless the opposite is demonstrated......

From 28 September 2020, where a self-isolating worker is scheduled to work or carry out any other employment-related tasks during the isolation window (aside from working at home or the location where they are isolating), they must inform their employer that they are obliged to self-isolate, providing the start and end dates of that period. This notice must be supplied as soon as reasonably practicable and, in any case, before the worker is next due to commence work within the isolation period......

Any pregnant employee who has scheduled an antenatal care appointment, acting on advice from a registered medical practitioner, a registered midwife, or a registered nurse, is entitled to be permitted time away during her usual working hours so that she can attend that appointment, provided that, after the second appointment, she presents the relevant evidence, and to be paid for the period of absence at the appropriate hourly rate for time worked......

For an unfair dismissal claim to succeed, the claimant must ultimately prove he was actually dismissed by the employer concerned...

This Q& A assumes that the employee is employed on a permanent employment contract, rather than a temporary employment contract. If the employee is on a permanent contract that specifies term-time only hours, their employment still clearly continues throughout the holidays up to the relevant termination date. Under this type of arrangement, pay for the weeks worked during term time, together with any holiday pay, is usually, in practice, distributed or averaged out over the entire 12 months. See, for instance, clause 2 of Precedent: Clauses—term-time working......

It can be useful to review, in sequence, the following key points: the obligation in section 1 of the Employment Rights Act 1996 ( ERA 1996) to issue a written statement of employment particulars the terms of the contract of employment an employer’s Human Resource ( HR)-related policies the use of electronic signatures Written statement of employment particulars Under ERA 1996, s 1(1), an employer must also provide a worker with a written statement setting out the specified particulars of employment identified in ERA 1996, s 1(3) and (4). For more detailed guidance on this duty, see Practice Note: Written statements of employment particulars. Where the particulars concern sick leave and pay, other paid leave, pension rights and training, the statement may instead direct the worker to another document that is reasonably accessible ( ERA 1996, ss 1(4)(d)(ii)–(iii), 1(4)(l) and 2(2))......

For further information on this topic in general, see: National minimum wage— Eligibility Employment-related statutory rates and limits table Minimum wage compliance checklist Deductions from wages Some of the statutory exceptions to the right to receive the national minimum wage are outlined below. This response concentrates on the scenarios where the point most commonly arises. Workers only Only ‘workers’ are entitled to be paid the national minimum wage—see our Practice Note: Worker status— Definition of ‘worker’. Agency workers who would otherwise fall outside the definition of a ‘worker’ because they have no contract with either the supplier or the recipient of their services are nevertheless entitled to the national minimum wage. Home workers who might not otherwise be ‘workers’ owing to an absence of any personal obligation in the contract to carry out the work themselves are likewise entitled to be paid the...

The obligation to implement reasonable adjustments consists of three distinct requirements in total. What unites all three, in particular, is that they only operate where a disabled individual is placed at a substantial disadvantage in relation to a 'relevant matter' when compared with people who are not disabled......

For the purposes of this Q& A, we proceed on the basis that, by this stage, the employee’s salary has either been paused or reduced. A contract of employment may set out express terms granting the employee a right to be paid, and to receive contractual benefits, during any spell of sickness absence. In some situations there may even be an implied term requiring the employer to both pay and to provide contractual benefits while the employee is off sick. As regards express provisions, an employer is not obliged to accept any such express contractual terms. Where the employer does agree, the employment contract will usually specify how long any sick pay entitlement lasts, the rate at which sick pay will be paid, and whether the employee will continue to receive contractual benefits during a period of sickness absence. For instance, an...