June 2011
Question 1:
Is it unlawful to not pay at least the National Minimum Wage to interns? I cannot see them in the list of excluded categories but they are taken on to learn (OK, by doing work experience) and get their foot in the door of their chosen career rather than to do anything absolutely essential. But am I in breach of the NMW regulations if I do not pay anything but expenses?
Answer:
Generally speaking an intern is not entitled to the National Minimum Wage (NMW), however, the intern may attract the NMW if he/she is be classified as a worker. This is a fine line that employer’s should be cautious of.
In the GB Tribunal case of Vetta v London Dreams Motion Pictures Ltd, it transpired that the intern was a worker. This was because the intern was given work that is more akin to that of a full-time employee and therefore was viewed as a 'worker'. An intern’s work should be temporary with an emphasis on training and learning and should not be exploited. If interns are given work and responsibilities that exceed that which is expected of an intern, the employer is putting themselves in a position where they may be liable to pay them the minimum wage, the courts will look at each scenario on a case by case basis to determine if they will be regarded as a 'worker' with employment rights.
If it is an internship where work is rewarded with training and not that akin to a full time employee then there is no requirement to pay them the National Minimum Wage, expenses are adequate.
Question 2:
From 3 April 2011, legislation enables eligible fathers or partners to take the residual entitlement of leave and pay where their partner (the child’s mother or adopter) returns to work prior to her leave/pay entitlements coming to an end.
However, is it not possible that the mother could start her maternity 11 weeks before her expected week of childbirth and go back to work when the child is 20 weeks (31 weeks) and then the father can take 26 weeks. Therefore, the total taken by the father and mother can exceed 52 weeks?
Answer:
It is now well known that where parents of a child born on or after 3rd April 2011 are both working, once the mother goes back to work, the father (provided he has accrued at least 26 weeks' continuous employment with the employer) can then take up to 26 weeks’ of "additional paternity leave".
What may be less well known, or at least not generally understood, is that the right to additional paternity leave is a freestanding separate right to take up to the maximum 26 weeks’ leave before the child’s first birthday. It does work by way of transfer of the leave between parents. You are correct in that this could result in the couple having a combined maternity leave and additional paternity leave period longer than if the mother alone took her full 52 week maternity leave entitlement.
In your example with the mother starting her maternity leave on the earliest possible date (11 weeks before her expected week of childbirth) and going back to work 20 weeks after the child is born, she will have taken 31 weeks of maternity leave, assuming the birth happened when expected. The father can then take 26 weeks’ additional paternity leave (expiring before the child's first birthday. The total of the maternity leave and additional paternity leave will then add up to 57 weeks - and on top of that the father will have been able to take the normal two weeks' paternity leave available under previous law, meaning that in total, between them the mother and father will have had 59 weeks leave.
The position in relation to pay is different. A father can only receive additional paternity pay where the mother has not exhausted her 39-week entitlement to SMP. The father can only receive an amount that represents the balance of the mother’s outstanding entitlement (and then only if she as at least two weeks of entitlement left). In the above example, the mother would have had eight weeks’ worth of pay left so the father would be entitled to 8 weeks’ additional statutory maternity pay. The remaining 18 weeks of the father’s APL would be unpaid unless his employer agrees to pay enhanced additional paternity pay.
Question 3:
Is there a statutory right to allow representation at investigation stage in NI?
Answer:
In short, no. Employees have the statutory right to be accompanied at disciplinary hearings (and grievance hearings) under the Employment Relations (Northern Ireland) Order 1999. Meetings held simply for the purpose of investigating matters as part of the disciplinary process are not “disciplinary hearings” for the purposes of the 1999 Order.
Although there is no statutory right to be accompanied, some employers offer the right to be accompanied at investigatory meetings in their contracts of employment and/or disciplinary procedures.
If the employee has not been given the right to be accompanied, the employer should be careful to ensure that an investigatory meeting does not turn into a disciplinary hearing that could result in a warning or some other sanction. If sufficient evidence has been gathered at any point in the meeting, or if the employee admits misconduct, the employer should adjourn the meeting and reconvene it at a later date when the employee can exercise his or her right to be accompanied.
Further, while there is no statutory requirement for an employee to have representation at the investigatory stage, employers must be mindful of their obligations to any disabled employees under discrimination legislation and the duty to consider reasonable adjustments where their premises or working conditions may put a disabled person at a substantial disadvantage to others. This obligation can extend to an investigatory meeting where a disabled employee would be placed at a substantial disadvantage if they were not to have representation at the meeting. A good example of this is a person with learning difficulties should have the option of having a family member present in such a meeting.
Question 4:
If an employee opts out at the company pension scheme, come 2012 are they now/then required to pay into NEST?
Answer:
Once auto-enrolment kicks in for an employer (from October 2012 onwards), it will be required to automatically enroll all eligible jobholders into the National Employment Savings Trust ‘‘NEST’’ or their own “qualifying” pension scheme. Employers can choose the pension scheme they believe is most appropriate for their business.
Therefore, regardless of whether the employee has previously opted out of the Employer scheme, he/she will still be required to be automatically enrolled into either the Employer “qualifying” scheme or NEST
However, while auto-enrolment is compulsory, employees have a right opt out of the scheme if they choose not to participate. Workers who opt out during a formal opt-out stage (which is expected to last for one month) will be put back into a position they would have been had they never entered the scheme. This will include a refund of any monies contributed. Employees can still opt out of the scheme after the formal opt out stage has passed, but they will loose their entitlement to a refund of any monies paid. If the employee opts out of the Company "qualifying" scheme there is no requirement to enrol him/her into NEST.
It should also be noted that eligible employees who opt out of NEST or the Company “qualifying” scheme will be automatically re-enrolled every three years or on changing employer. Re-enrolled employees will again be able to elect to opt out at this stage.
