REWARD
Tribunal claims: a closer look
Nicola Mullineux, senior employment tax specialist for Peninsula, considers three employment tribunal (ET) cases concerning the national minimum wage (NMW) rules, unfair dismissal and discrimination
EAT finds saving scheme to be in breach of NMW rules In the case of Revenue and Customs Commissioners v Lees of Scotland Ltd, the Employment Appeal Tribunal (EAT) considered whether a savings scheme was in breach of the national minimum Wage (NMW) rules. The respondent operated a savings scheme, whereby workers would voluntarily pay contributions into a fund, collected via a deduction from wages, to help them save for holidays. These funds were retained by the respondent in its main trading account. They were then paid on request to workers, giving them a lump sum to pay for a holiday. The deductions caused some of the workers’ wages to fall below NMW. As a result, HM Revenue and Customs (HMRC) served a notice of underpayment on the respondent requiring it to pay arrears of nearly £81,000 to the workers named in the notice. The respondent appealed the notice to the ET. The tribunal had to decide whether these deductions were for the respondent’s “own use and benefit” for the purposes of Regulation 12(1) of the National Minimum Wage Regulations 2015. If they were, they would be treated as reducing the amount the respondent paid to its workers, resulting in an underpayment of NMW for affected workers. Rather than being for its “own use and purpose”, the ET found that the
deductions were instead delayed / deferred wages, ring-fenced for later payment. The deductions were not made for the purpose of the respondent’s own use. The fact that they were kept in the respondent’s trading account didn’t change the purpose of the deduction. Therefore, the employer wasn’t in breach of the NMW regulations, and the notice was rescinded. The tribunal also made findings on whether the withdrawal of the payments from the fund reduced (or extinguished) the amount of NMW owed by the respondent to the workers, even though this was not the purpose of the withdrawal. As the ET had already found that the deductions didn’t cause the wages to fall below NMW, this point would make no difference to the outcome of the case. Nevertheless, the ET considered it and found that the monies paid from the fund when a worker requested a withdrawal would count as “additional remuneration” under s.17 of the National Minimum Wage Act 1998. This therefore meant that, in the ET’s opinion, the respondent discharged its liability to pay NMW arrears. The claimant, HMRC, appealed this decision. The EAT held that when looking at the issue of an employer’s “own use and benefit”, the ET should consider if the employer could use the money deducted for its own purposes, rather than whether ultimately it was the employer or the worker who benefitted from the deduction.
The EAT held that if there was no legal limitation on the way the employer could use the money paid or deducted, it would be for its own use and benefit, and therefore the deductions would cause the affected workers’ pay to fall below NMW. By virtue of the fact the deducted monies were at the complete disposal of the respondent, by being held in its trading account, earning interest for the benefit of the respondent and without protection from creditors should the respondent become insolvent, the respondent was not satisfying the requirements of NMW. The EAT found that the ET had erred in law. On the question of whether a withdrawal from the fund would count as “additional remuneration” for the purposes of s.17 of the National Minimum Wage Act 1998, therefore extinguishing or reducing the respondent’s liability for the arrears, the EAT found that it was not, as this wasn’t in line with the purpose of that legislation, which is to provide money to workers for a given reference period. The payments couldn’t therefore be deferred payment, and the respondent was in breach of its obligations under the National Minimum Wage Act 1998. The EAT restored the notice of payments. Tribunal rules dismissing employee charged with murder was unfair After the claimant was arrested and charged with murder, a recent ET case
| Professional in Payroll, Pensions and Reward | November 2024 | Issue 105 38
Made with FlippingBook - Online magazine maker