COMPLIANCE
Jeni Morris ACIPP, head of the national minimum wage (NMW) team at EY , talks about those undisclosed ‘quiet’ additional work hours, which can sometimes mean that organisations aren’t compliant with important, stringent NMW rules Hidden working time
M any employees are completing ‘under the radar’ tasks outside of their contracted hours. This kind of work has become normalised after the pandemic, and although not all bad, it’s potentially creating a significant NMW risk for businesses. We all know that in certain sectors, it’s expected that some elements of work are undertaken outside the normal workday. How many of us just ‘check our emails’ during the evenings or weekends, only to find an hour later you’ve become involved in an email trail which requires immediate action? Think of those quick work tasks that seep into personal time, such as checking rotas or answering messages from colleagues. Workers have been undertaking similar tasks for a while, but since the pandemic effectively overhauled the way people work, the lines between professional and personal activities have become increasingly fuzzy, embedding these behaviours. These hidden, even quiet, additional work moments may not strictly feel like work, but they still are. These extra working moments also appear to be morphing into an expectation, making it harder for workers to shake off such work duties and even harder for employers to know how many actual hours an employee is working. There are many ways a person’s day job can slip into their non-working hours. Anyone can be susceptible to hidden overwork – from retail workers checking their weekly rotas and completing their health and safety training from home one evening while watching TV, to those
laptops. This data is then interrogated to identify any out of hours work which has been undertaken. “Unpaid working time is one of the top reasons why businesses are regularly found to be underpaying employees for national minimum wage purposes” You could be forgiven for thinking this risk is only for those employees paid at or close to NMW / national living wage (NLW) rates; however, increasingly, employers who pay significantly above NMW rates are finding themselves falling foul of the rules. For salaried employees, any additional excess hours must be paid at, at least, the NMW / NLW rate the worker is entitled to. Once those contractual hours are worked, in essence, the contracted salary has been attributed in full. If a worker reaches their annual contractual hours following the final working day in month 11 (of their contractual year), all hours worked in month 12 will be ‘excess’ hours. Their salary in month 12 will need to be sufficient to cover their normal monthly contracted hours plus all of the hours worked in month 12. as these are all excess hours. Any hours worked in month 12 must be paid at least at the NMW rate. n
employees who need slightly longer to prepare for a client meeting. For many employees, it’s easy to fall into these hidden overwork patterns which can become baked into a workplace culture, meaning what was a choice is now an expectation, unintentionally or otherwise. So, where’s the NMW compliance risk? A business is expected to perform regular calculations to ensure employees are being paid at least NMW rates for all the hours worked. This requirement is for both hourly paid workers and those who are salaried. The way the calculations are performed are slightly different for each category of worker, but the overriding elements required are: l the pay received in each pay period l any deductions made from the salary (excluding statutory deductions) l the actual hours worked (not just contracted hours). Unpaid working time is one of the top reasons why businesses are regularly found to be underpaying employees for NMW purposes. If, during an NMW investigation, a business is found not to have kept evidence of the actual hours worked, HM Revenue and Customs (HMRC) will test these calculations for accuracy by interviewing current and former employees to build a true picture of the actual hours worked. HMRC also requests data from various sources; for example, it can request computer data showing the times employees have logged in and out of their
| Professional in Payroll, Pensions and Reward | April 2023 | Issue 89 18
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