It was no April Fool. A national minimum wage took effect at the beginning of April and the minimum wage legislation goes beyond just setting pay levels. It imposes obligations on all businesses and no employer is unaffected, even if it already pays above the legal minimum.
All UK workers are covered (except for the self-employed) with no exemptions or modifications for region, sector, occupation or size of company. The law covers not just employees, but also those performing work for another party where that other party is not the employee's client or customer.
Most agency workers qualify and some voluntary workers might also be eligible.
The legislation identifies four types of work covered by the minimum wage. The first is time work, where workers are engaged in and paid wholly on a time basis, or partly on a time basis and partly on a piece-work or commission basis. The minimum wage applies to employees working on standby or on call at work premises (but not when sleeping at work premises); downtime when a piece of machinery is inoperable; business travel, whether or not during work hours; and travelling to, or attending, training at or outside the workplace. It does not include travel to and from work, absence from work or rest breaks during work time.
The second type of employment covered by the legislation is output work, where workers are engaged and paid wholly on a piecework or commission basis. Output work will include business travel.
Non-hours work is also included. This is where workers are engaged and paid on a basis other than time work or output work. Salaried hours constitute the fourth type of employment covered by the minimum wage.
Detailed rules have been drawn up for calculating hourly rates (see box) and pay reference periods. First, take gross pay and subtract specified reductions and deductions. Divide this amount by the total number of hours worked in the pay reference period. Then, compare the average hourly rate with the appropriate wage rate.
The pay reference period is a month, or if the worker is paid in periods less than a month, the lesser period. Employers should investigate how this affects their payments to seasonal or casual workers, piece-workers, workers on commission and team workers or annualised contracts.
The hours worked in a pay reference period will depend on the type of work. Time work is the total number of hours of time work in the pay reference period. Output work is calculated one of two ways. Where the employer controls the worker's hours, it will be the total number of hours spent working during the pay reference period. The only way round this is where no normal hours are set and the employer does not control the hours worked.
Then, the number of hours worked will be ascertained by a written agreement that contains a fair estimate of weekly hours. In addition, the worker must keep a record of hours worked and is entitled to a piece-rate or commission rate.
Non-hours work is also calculated using one of two methods. Generally, it will be the number of hours worked in the pay reference period carrying out the contractually-required duties. The only way round this is if there is a written agreement specifying a realistic average number of hours for a typical day. Then, the hours to be counted will be the hours specified in the agreement (including pro rata payment for days part worked).
Total pay is calculated by adding all payments in the pay reference period and any payments made in the next period that relate to the previous period; subject to various reductions by the exclusion of payments that are not counted.
Bonuses and incentive or performance payments count. As do deductions for repayment of loans, advances and share purchases as well as misconduct where the worker is contractually liable.
The following payments are excluded from total pay:
-Benefits in kind, vouchers, loans, pension payments, court awards, redundancy and severance payments, suggestions schemes awards.
-Payments for the previous pay reference period.
-Payments when the worker was absent including sickness, holiday, industrial action, maternity.
-Payments over the basic rate, including overtime or shift premium rates for output work.
-Allowances including London weighting, dangerous work, unsocial hours, standby or on-call payments, special duties.
-Money payments by customers not through the payroll, including tips and service charges.
-Payments for expenditure in connection with work, for example, travel expenses.
-Deductions for purchase of tools, parts or equipment, or materials that become part of the output.
-Payments to the employer or to a third party, or by the employer to a third party, for goods or services needed for work, travel or other payments the employer retains for its own use or benefit.
-Deductions for living accommodation if they are more than 50p per hour or #2.85 per day.
The government no longer requires workers to receive a minimum wage statement, containing information on rates and exemptions. Instead, it suggests making such a statement company policy.
Employers must keep payment records for three years. Although the government no longer dictates what information must be kept, it is clear that details will be necessary, as the employer must be able to prove minimum wage compliance.
Every worker has the right to see their payment records within 14 days if they have reasonable grounds to believe they are not paid the minimum wage. Records may not fulfil the requirements - for example, they may not include the premium element of pay and overtime payments, or include time absent from work.
A list of workers' rights have been drawn up. They include:
-A right to accompanied inspection of payment records.
-An award of up to 80 times the hourly minimum wage for an employers' failure to allow inspection or produce records.
-A contractual right to claim the difference from the minimum rate.
-A right to claim deductions from total pay calculation if paid less than the minimum wage.
-A right to claim if they have suffered detrimental treatment in asserting their wage rights.
-A right to claim automatic unfair dismissal if they lose their jobs for asserting minimum wage rights.
Any agreement to exclude minimum wage rights is invalid, and the burden of proof is on the employer to show the correct rate was paid.
There are also enforcement and criminal measures to guarantee the minimum wage. Enforcement officers can require production of records and serve notices requiring payment of minimum wage and any arrears. Failure to comply can lead to proceedings to pay, or a penalty notice requiring payment of double the minimum wage to each affected worker for each day of non-compliance.
It will also be a criminal offence to refuse or neglect to pay the minimum wage, to fail to keep records, to keep false records, to produce false records, or to obstruct an enforcement officer. Fines of up to #5,000 can be issued.
Employers needing to change present practices should do their homework.
Tax and national insurance payments may increase if benefits are replaced with cash. If such pay is put through payroll, it could affect what is pensionable pay.
WHAT'S THE DAMAGE?
The national minimum wage rates are: Under 18s: No rate.
Apprentices: Exempt for the first year. (Apprentices means those under 26, under a contract of apprenticeship or the Modern Apprenticeship Scheme.
Employers should check whether their apprentices fall in this definition to use this exemption.) 18s to under 22s: #3.00 per hour.
Over 22s: For new joiners receiving accredited training, it is #3.20 per hour. (Accredited training means new joiners in the first six months, receiving accredited training for at least 26 days in those first six months. Employers should consider whether they should switch training programmes, for example, from on-the-job to accredited versions to use this modification.)
Adult workers over 22: #3.60 per hour.
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