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the worker’s NMW pay as it is made for the use and benefit of the employer. BEIS released guidance on calculating the NMW: see https://bit.ly/3h8rQ8P. Q: When calculating redundancy payments, which weeks do we use for those employees furloughed? A: Section 222 of the Employment Rights Act 1996 refers to the relevant period of twelve weeks. This means that you would take twelve weeks of worked hours immediately prior to the date notice was given. Where an employee is furloughed, you would have to go back to the week where they were working as you cannot include furlough pay in the calculation. This is provided for by regulation 3 (Calculation of a week’s pay in relation to furloughed employees) of the Employment Rights Act 1996 (Coronavirus, Calculation of a Week’s Pay) Regulations 2020 (https://bit. ly/2CorT1X). Q: If an employee works on an hourly basis, is statutory sick pay (SSP) calculated daily or hourly? A: SSP payments are paid based on qualifying days in which the employee is absent. It is a weekly rate but with daily rates derived. See https://bit.ly/2ZhopXk for guidance. Q: If a mother gives binding notice that she intends to curtail her statutory maternity leave (SML) and statutory maternity pay (SMP) in April, can her partner take their portion of statutory shared parental leave (SShPL) and pay (SShPP) before this date? A: For entitlement to SShPP to arise, the mother must have ended or given binding notice to curtail her SML and SMP, which allows payment of SShPP to start for the partner before the date the mother intends to end her maternity pay period (MPP). The mother can revoke this notice at any time up until six weeks after the birth of the baby. Revocation means that she can change the dates of the binding notice or withdraw it altogether. However, the conditions are that the planned end date must not have passed, and the mother must not have already returned to work. One of the following must also apply: ● it has been discovered during the eight-week notice period that neither
partner is eligible for either SShPL or SShPP ● the employee’s partner has died ● it is less than six weeks after the birth (and the mother gave notice before the birth). Any amounts of SShPP paid between the birth and the revocation up to week six could be correctly paid despite the revocation as there was an entitlement in those weeks. If, for example, the mother gave binding notice to curtail her SML in week 20, her partner claimed SShPP and SShPL for weeks 2–8, and the mother revoked her notice in week 4 then any SShPP paid up until week 4 is correctly paid. However, if the employer continued to pay SShPP in week 5 after the revocation of notice when there was no entitlement in this week, this would be an overpayment that would need to be recovered. The mother and partner will still have the option to start SShPL and SShPP again later but the SShPP up until week 4 reduces the total SShPP due. Q: Is it a breach of data protection for payroll staff to see sick notes detailing the reasons for sickness? A: It would not be a breach as the document is being used for what it was intended – to process SSP. Data protection is the fair and proper use of information about people. Ordinarily payroll do not need to know the reasons for sickness as it would have no effect on SSP; however, during COVID-19 SSP is now payable on day one so payroll need to know if the sickness is COVID-19-related to process SSP correctly. Q: Can employees transferring under the ‘TUPE’ (transfer of undertakings protection of employment) rules, continue after transfer to be eligible for the tax and NICs exemption for childcare vouchers? A: A specific condition is that the exemption is only available to an employee who was employed by the employer immediately before 4 October 2018 and continues to be employed by that employer on or after that date. However, this condition may be regarded as met where the employee has transferred to an employer on after 4 October 2018 under the TUPE rules as this is deemed as being the same employment (see EIM22017 (https://bit.ly/35eCZCM)). n
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| Professional in Payroll, Pensions and Reward |
Issue 64 | October 2020
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