THIS ISSUE: NMW and other pay rate increases for 2018/19, On-call time, GDPR

Taylor Review Response – Itemised Payslips

The draft Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No 2) Order 2018 extends the right to itemised payslip to all workers, not just employees, and allows for enforcement of that right in an employment tribunal.  The Draft Order is the Government’s response to recommendations of the Taylor Review and is due to come into force on 6 April 2019.

Statutory Pay Rates for Leave Increase

As of 1 April 2018, new statutory rates for maternity, paternity, shared parental and adoption pay come into force, set at £145.18 a week (up from £140.98).

Maternity allowance will increase to the same rate on 9 April 2018.

As of 6 April 2018, the weekly rate of statutory sick pay will be increased to £92.05 (from £89.35).

The observed increases are aligned with the consumer prices index – increases are no longer restricted to a 1% cap in place since 2013.

National Minimum Wage Increase

In accordance with recommendations of the Low Pay Commission the draft National Minimum Wage (Amendment) Regulations 2018 were published on 6 February 2018.

As a result, from 1 April 2018 the following hourly rates will apply:

  • The national living wage (25 and over) is £7.83.
  • The standard adult rate (21 to 24) is £7.38.
  • The development rate (18 to 20) is £5.90.
  • The young workers rate (under 18 but not apprentices) is £4.20.
  • The rate for apprentices is £3.70.

The accommodation offset will be £7.00 each day from the same date.

Increase to Tribunal Compensation Limits

The Employment Rights (Increase of Limits) Order 2018 SI 2018/194 has resulted in increases to compensation limits and minimum awards for employment legislation.

From 6 April 2018, the following will apply:

  • The compensatory award limit for unfair dismissal will rise from £80,541 to £83,682.
  • The week pay limit for the calculation purposes (e.g. redundancy payments or basic unfair dismissal award) will increase from £489 to £508.
  • Guaranteed pay rate will increase from £27 to £28 per day.
  • The minimum basic award where a dismissal is unfair by virtue of H&S, employee representative, trade union, or occupational pension trustee reasons will increase from £5,970 to £6,203.

Rates will take effect where the ‘appropriate date’ for the cause of action (e.g. the date of termination in an unfair dismissal claim) falls on or after 6 April 2018.

The old limits will apply, irrespective of the date on which compensation is awarded where the appropriate date falls before 6 April.

No Constructive Knowledge of Disability

EAT’s decision that an employer did not have constructive knowledge of an employee’s disability was upheld by the Court of Appeal in the case of Donelien v Liberata UK Ltd.  The court ruled reasonable steps had been taken by the employer to ascertain whether the employee was disabled.

The employer had consulted occupational health advisers, sought clarifications, considered correspondence from the employee’s GP and held return to work meetings with the employee before reaching its conclusion that she was not disabled.

The test was whether reasonable steps had been taken, not whether there was more the employer could have done to ascertain if the employee was disabled.

On-Call Time was Working Time

In Ville de Nivelles v Matzak, the ECJ has held that, where an on-call worker was under a duty to respond to calls and be at the place of work within eight minutes, the on-call time constituted working time.

The ECJ noted that on-call time spent at home must be regarded as ‘working time’ where limits imposed by the employer objectively restricted the worker’s chances to pursue personal and social interests.  It observed that, where a worker is required to be physically present and available at a place determined by the employer, this must be regarded as ‘working time’.

The ECJ added that the situation is different where the worker is required to be permanently accessible but not present at the place of work.  In those circumstances – as less constraints are imposed upon the worker – only time linked to the actual provision of services must be equated with ‘working time’.

Contrary to the Advocate General’s opinion, it was further noted that intensity of work and output do not determine what constitutes ‘working time’.

Next steps toward GDPR

In line with the General Data Protection Regulation, the UK’s draft Data Protection (Charges and Information) Regulations 2018 were published on 20 February 2018 with the final version coming into force on 25 May 2018.

The draft regulations:

  • Set out when data controllers will be required to provide information to the Information Commissioner’s Office (ICO)
  • Outline when data controllers pay charges associated with registration to the ICO
    • Annual charges apply unless exempt under Schedule 2 e.g. for personal purposes
    • There are three tiers of charge – £40, £60 and £2,900 – which are based on turnover, number of staff and type of organisation (charities pay the lowest tier)
  • Accounts for multiple/joint data controllers, for example, a governing body and head teacher of a school.

A guide to the draft regulations has been published by the ICO to support data controllers with fees and relevance, and the ICO intends to publish an online exemption assessment tool before 25 May 2018.

If you have any questions on any of the above information or require employment law or HR advice, please contact Kate Lawson of Element Law on 01892 516 216 or