Pension auto-enrolment: Are you prepared?

As many of you will be aware, the law on workplace pensions has changed. Employers now have a duty to enrol eligible members of staff into a pension and a duty to contribute towards this. This is the case even if there is only one employee in the company. This can be an onerous task for smaller employers and may take a substantial amount of time. The Pension Regulator recommends that companies leave themselves 12 months to prepare for auto-enrolment. Those dates are quickly approaching and you would be wise to start thinking about putting together the appropriate systems. Here is a table of the dates on which auto-enrolment is required to be in place. It is dependent on the size of the company and the type of PAYE scheme the company operates.

In order to help smaller companies, the Pension Regulator last week released a new web guide. The guide is specifically aimed at employers with between one and fifty staff. It explains how to complete key tasks such as knowing when to be ready, providing a point of contact for the regulator, checking who needs to be enrolled and creating a plan of action. This should prove useful to smaller employers as they try to prepare for auto-enrolment. As a reminder, small employers can expect to receive a letter in the post in the coming few months. As a heads-up though, here is the eleven point step-by-step guide provided by the Pension Regulator.

If you have any queries about auto-enrolment and the effects it may have on your business, then please do not hesitate to get in touch!

Andrew Wallace
Trainee Solicitor – Employment Law

Lock, Stock and… no major smoking barrels Commission must feature in holiday pay

The Employment Tribunal in Leicester has delivered its judgment in the case of Lock v British Gas Trading.  Mr Lock was paid a basic salary plus commission.  The commission which he earned would be reflected in his pay sometimes months after the sales to which the commission related had been made.  His commission payments reflected a large part of his overall pay.  When Mr Lock took holidays, he would be paid for any commissions earned prior to the holiday.  Mr Lock’s complaint was that because he could not earn commissions when on holiday, his wages would be lower in the period following any holidays.

A previous ruling from the CJEU found that holiday pay should reflect what an employee should have been paid had they been working.  Mr Lock argued on the back of this that his pay ought to be enhanced to reflect the commission that he would have earned had he not taken holidays.  The tribunal agreed.

The issue for the tribunal was whether the UK Working Time Regulations 1998 (“WTR”) could be interpreted in a manner which conformed to the European approach.  This was achieved by amending the following words to Regulation 16(3) of the WTR “(e) as if, in the case of the entitlement under Regulation 13, a worker with normal working hours whose remuneration includes commission or similar payment shall be deemed to have remuneration which varies with the amount of work done for the purpose of section 221.

Employers who operate commission payments will need to consider the impact of this decision.  It is worth noting that the decision applies only to the 4 weeks’ basic annual leave.  The additional 1.6 week’s leave stems from UK law and is not affected by the decision.

Jack Boyle
Senior Solicitor – Employment Law

Why Did Zayn Not Work His Notice? And what is the direction of the latest One Direction revelation?

Zayn Malik
The world was rocked yesterday at news that Zayn Malik has left One Direction.  His official statement read, “I am leaving because I want to be a normal 22-year old who is able to relax and have some private time out of the spotlight.”  Rumour has it that he resigned as a result of the stress which has been caused by being a member of the most successful boy band of all time.

Is he lodging a claim of constructive unfair dismissal? 

The circumstances surrounding his resignation are not unlike circumstances which surround claims of constructive unfair dismissal, where employees tender their resignation as a result of a breach of contract.  In order for a claim of constructive unfair dismissal to succeed, it must be established that:

  • There was a fundamental breach of contract on the part of the employer
  • The employer’s breach caused the employee to resign
  • The employee did not delay too long before resigning

It seems entirely plausible that Zayn could rely on the stress which was caused by his job, the circumstances surrounding his resignation and the content of his official statement to support a claim of constructive unfair dismissal in the future.

Why would Zayn not work his notice? 

In claims for constructive dismissal, a tribunal can criticise an employee who offers to work longer than their contractual minimum notice period. In such cases, a tribunal can make a finding that the employee has affirmed the contract, resulting in an unsuccessful claim of constructive dismissal.  For this reason, an employee would not normally offer to work their notice period when resigning in pursuit of a claim.  Having said that, the EAT has made it clear in recent cases that each case is fact sensitive and the matter of time is not to be taken in isolation.  Generally employees should take advice about the issue of notice before electing to resign.  However if Zayn is intent on pursuing such a claim, he was wise not to have offered to work his contractual notice period.

How long does Zayn have to lodge a claim? 

Any claim for constructive unfair dismissal requires to be lodged within three months of the effective date of termination of employment.  The only exception to this rule is where it was not reasonably practicable to have lodged the claim within this time limit.  Tribunals however are generally reluctant to use this exception.  For this reason, Zayn will require to act quickly if he wants to identify the correct employment lawyer, pay his employment tribunal issue fee and get his funding in place for a claim.

One Way Or Another, I am sure that we will eventually hear The Story Of His Life.
In the meantime, we can only speculate as to the reasons for Zayn’s resignation.
Maybe he will lodge a claim of constructive unfair dismissal.
Maybe he just wants to Live While He’s Young.
Or maybe he just didn’t like their music ….

Simon Allison
Partner – Employment Law

Changes to the ACAS Code – The right to a companion

As of 11 March 2015, the ACAS Code of Practice on Disciplinary and Grievance Procedures has been amended in relation to a worker’s right to bring a companion to a disciplinary or grievance hearing. The change has come about following the Toal v GB Oils case heard by the Employment Appeal Tribunal in 2013. The amendments have been approved by Parliament and are now enforceable by law.

The previous wording of the ACAS Code

A worker has the statutory right to bring a companion of their choice to a disciplinary or a grievance hearing. The companion must however fit at least one of the following criteria:

  1. Be another of the employer’s workers.
  2. Be a trade union official employed by a trade union.
  3. Be certified by a trade union as having experience or training in relation to acting as a worker’s companion at a disciplinary or grievance hearing.

In order to exercise the right to be accompanied, the ACAS Code previously provided that “workers must make a reasonable request”. It is what amounts to a “reasonable request” that ACAS have sought to clarify with these changes.

The changes

In the case Toal v GB Oils it was held that the “reasonable” element of a request to be accompanied did not relate to the choice of who had been requested as a companion. It was held that a worker has the right to request whoever they like, as long as they fit one of the three criteria outlined above. The “reasonable” aspect of a request instead relates to the practicalities of a request – eg the geographical location of the companion requested or their willingness to attend. The changes to the ACAS Code reflect the decision made in this case.

What does this mean for the employer?

These changes mean that an employer must accept a request for a companion provided they fit the three criteria above and they are willing to attend. It is important to note that the companion requested should not suffer prejudice in the future by the employer if they choose to attend.

The new wording of the ACAS Code also lays out a number of factors outlining what constitutes a reasonable request under this pretence. There are a few important points to note:


  1. It states that it is merely good practice for a worker to make a reasonable request, rather than being a legal requirement.
  2. There is an express provision that allows a worker to change their choice.
  3. A request does not have to be in writing, but it should be made in a way that is clearly understood, preferably naming the intended companion and their current role (ie whether they are another worker or a trade union rep)
  4. A worker does not have to make a request within a certain timeframe, but it should give the employer enough time to deal with the attendance of the companion.
  5. If the chosen companion cannot make the time provided by the employer, the employer must postpone the meeting to a time proposed by the worker. The time proposed by the worker must be reasonable and within five working days of the postponement.

Given the regularity with which this issue is considered by employers, it is very important that employers and HR professionals make themselves aware of these changes. If in doubt, take advice!

Andrew Wallace
Trainee Solicitor – Employment

Back My Snitch Up: The role of prescribed persons for potential whistle-blowers

The National Audit Office (NAO) has just published a report suggesting that “prescribed persons” could do more to explain their roles and responsibilities to potential whistle-blowers.

What are “prescribed persons”?

In the majority of whistle-blowing cases, it is the employer (or someone within the employer’s organisation) to whom the employee will make a protected disclosure.  However if the employee decides to blow the whistle to someone other than his employer, the employee must ensure that he has chosen the correct person or body for this complaint.  A list of prescribed persons exists for such purposes.  This list contains various MPs, specified Government Ministers and public bodies together with approximately 60 regulators.  If a whistle-blower were to raise a concern with the “wrong” (non-prescribed) person, the whistle-blower would potentially not have the protection intended by the existing legislation.

What does the report state?

The report suggests that “prescribed persons” frequently do not know what is expected of them.  For example, prescribed persons are not required to investigate every concern or to give feedback to the potential whistle-blower.  However perhaps more importantly the report finds that prescribed persons could do more to explain their roles and responsibilities to potential whistle-blowers.  After an examination of various protected persons’ websites, the NAO believed that more information should be available to the potential whistle-blower so as to ensure adequate protection for that person.

Ultimately the law relating to whistle-blowers is extremely complicated both for employers and employees.  If in doubt about how to deal with such disclosures, individuals should take legal advice, where appropriate.

Simon Allison
Partner – Employment Law

Anyone with company cars? – New fuel rates as of 1 March 2015

Based on the recent downturn in oil prices, last week the Government released new recommended fuel rates for any company cars within a company. They vary depending on engine size and they are as follows:

Engine Size New Rate
1400cc or less  

11p for petrol (previously 13p) and 8p for LPG (previously 9p)


1401cc to 2000cc  

13p for petrol (previously 16p) and 10p for LPG (previously 11p)


1600cc or less 9p for diesel (previously 11p)
1601cc to 2000cc  

11p for diesel (previously 13p)


Over 2000cc 20p for petrol (previously 23p), 14p for LPG (previously 16p) and 14p for diesel (previously 16p)

Points to note

These recommended rates will apply to all journeys after 1 March 2015. An employer may continue to use either the new or previous rates.

They only apply where an employer reimburses an employee for business related travel in a company car and also requires the employee to repay the cost of fuel used for private use.

If an employer feels that their cars are more or less efficient than these rates, there remains a flexibility for an employer to adjust the rates accordingly.

Andrew Wallace
Trainee Solicitor – Employment Law