Employment Law partner at Howes Percival Paula Bailey commented:
"Employers should take a keen interest in this case. It is likely to be appealed which could result in a Supreme Court ruling that is binding on all UK employers. Depending on how that is decided, it could bring into question the enforceability of the Deduction from Wages (Limitation) Regulations 2014 (SI 3322/2014), which limits back pay claims to two years, resulting in increased liabilities for employers."
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TUPE: Keeping Minimum Wage Records 15 July 2019
The Employment Appeal Tribunal has held that the obligation to keep and therefore produce wage records for transferring employees does not remain with the transferor in a TUPE transfer.
Daniel Barnett’s employment law bulletin summarises the case of Mears Homecare Limited v Bradburn and others:
Section 9 of the National Minimum Wage Act 1998 (NMWA) imposes an obligation on employers to keep pay records. The obligation remains where the employee's employment has ceased. A worker has the right to require their employer to produce pay records if they believe on reasonable grounds that they may have been paid less than the national minimum wages. The Claimants transferred to new employers under TUPE. Around four months later, they served production notices on the Respondent requesting wage information. The Respondent failed to respond to the production notices within the 14 day time limit. The tribunal ordered them to pay £600 to each Claimant, that sum being 80 times the hourly rate for national minimum wage.
The EAT overturned the decision, finding that under a TUPE transfer, employment does not cease for the purposes of the NMWA, it continues but with the transferee. Liability to keep pay records transfers from transferor to the transferee.
The EAT recognised that it may be more convenient for the transferor to maintain pay records as they had collated them but said that was not a good reason for the obligation not to transfer. There was no reason why the transferee should not be in a position to insist that pay records are delivered by the transferor as part of the transfer agreement reached.
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Employees who covertly record Meetings 18 July 2019
The Employment Appeal Tribunal has held that it is misconduct for an employee to make a covert recording at work, except in the most pressing of circumstances.
Daniel Barnett’s employment law bulletin explains that in the case of Phoenix House v Stockman the Claimant disclosed, during her successful unfair dismissal claim, a covert recording she had made during employment. The employer contended that her compensation for unfair dismissal should be reduced on 'just and equitable' grounds and under the *Polkey principle, to reflect her pre-dismissal conduct in making a covert recording, as doing so without pressing justification was misconduct.
The EAT rejected the Respondent's attack on the tribunal's approach to reductions; the tribunal was entitled to come to its conclusions on the facts and it did not err in law.
The EAT's reasons contain observations on the varied circumstances in which covert recordings might be misconduct. It is good employment practice for an employee or employer to say if there is any intention to record a meeting, and it is generally misconduct not to do so, except in the most pressing of circumstances.
The Chartered Institute of Payroll Professionals
Payroll: need to know
cipp.org.uk
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