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Rights to Pay in the UK - Employment Law Guide


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All of us will at some point join the working world. By extension we will likely expect to be paid for the work that we do. This would ideally be a very simple arrangement. However, matters have become quite complicated with the different schemes that see different people of varying ages enter the workplace for varying lengths of time. As an area, the law governing pay in the UK is one of the most complicated and fast moving but also one of the most important, given that it affects so many people.

pay-rights-uk

At Unlock the Law, we understand how important it is to have a clear of understanding of the rules on pay and how they apply. In this guide, we unpack the legislation and give detailed information on people's rights to pay in the UK.

WHAT WILL THIS GUIDE COVER?

  • The distinguishing features to merit payment
  • The different rates of pay

WHAT QUESTIONS WILL THIS GUIDE ANSWER?

What is meant by the 'right to pay'?

The 'right to pay' is a right to be paid for the work that you do. Generally speaking most people that take up some form of work in the UK will be entitled to be paid for any work that they do, but this will depend on their being in a particular kind of relationship with an organisation.

Who is entitled to be paid for the work that they do?

Employers are obliged to pay people that work for them as 'workers'. It is important to understand that the term 'worker' has a particular meaning in law. You will be a 'worker' and entitled to be paid for the work that you do if you meet the following criteria:

  • You have some kind of contract - either written or verbal – with an organisation that provides that you will be paid for having carried out work allotted to you;
  • The reward that you are to be given is either a financial payment (ie cash or other form of financial payment) or a benefit in kind
  • In order for you to receive the financial payment, you are required to attend at the organisations premises ready to work, even if you don't want to.
  • The organisation that you work for is obliged to provide you with work for the duration of the contract that it has with you;
  • You are provided with the majority (if not all) of the necessary resources and tools that are needed to complete your duties by the organisations;
  • You are required to carry out the work allocated to you, and are not allowed (or are only limited in your ability) to delegate responsibility for these duties to others; and
  • You do not hold yourself out to be 'self-employed'.

If you meet all of the criteria mentioned above, and are aged above 16 or over then you will be entitled to be paid for the work that you do.

What am I to be paid for?

Obviously individuals are entitled to be paid for the work that they do. However not all jobs are 9-5, or restricted to one premises in one part of the town, city or country. As a result, the law has had to adapt to outline all of the circumstances that individuals are to be paid.

1. What if I sleep while I am technically 'at work'?

It is not uncommon that individuals working in the health or social care sector will sleep at some point during the time that they are at work. The crucial point here is determining whether or not you are required to discharge your responsibilities while you are asleep. In other words, the question is, even though you are asleep, are you still working?

If the answer is 'yes', then you are entitled to be paid. However there is an exception to this in that you will not be entitled to be paid where you are given facilities to sleep in while at work. You will only need to be paid for the work that you do while you are awake.

2. What if my work involves a lot of travelling?

It is fairly well known that employers are not required to pay you for the time you spend travelling to work from your home – the underlying idea is that all of us decide where we want to work, and must accept the cost involved. However the situation is slightly different where:

  1. You need to travel as part of your duties;
  2. You need to attend training away from your normal place of work;
  3. You are required to spend time away from work to collect something or someone that is related to your work;
  4. You are required to spend time training for your work;
  5. Where you are travelling from one assignment to another.

In these cases you must be paid for the time that you spend travelling.

How much can I expect to be paid?

If you meet the criteria listed above, you will be entitled at the very least to be paid the National Minimum Wage (NMW). This is the rate of pay that the government has decided must be paid, as a minimum, to those working in the UK as workers. It is important to understand however that not everyone is entitled to be given this money in payment for their work. Furthermore there are different rates of the NMW depending on the age that an individual is.

The NMW is decided by government and tends to change from time-to-time. Further there are in fact different rates of the NMW depending on one's age:

  • If you are a worker i.e. you have a contract of employment with an organisation, and you are aged 21 or above, you are entitled to be paid the standard rate of NMW of £6.50 per hour;
  • If however you are a worker but are aged between 18 – 20 years old, then you are entitled to be paid the reduced rate of the NMW of £5.13 per hour.
  • Where you are a worker and you are aged between 16 and 17 years old, you are entitled to be paid £3.79 per hour.

It is important to be aware that provided an organisation pays the NMW to those that are entitled to it, they are not obliged to pay more than this by law – it is a matter of discretion as to how much more than the NMW they pay their workers.

What if I am not a 'worker'?

The reality is that in the modern world, there are in fact lots of different people who enter the world of work but do not in fact do so as 'workers'. The law has been designed to reflect this fact and so provides an answer as to how much is to be paid in each instance.

1. Voluntary workers

Voluntary workers by their nature, will be individuals that have a contract with an organisation to provide certain services. If your contract describes you as a 'voluntary worker' then you will not be entitled to be paid. Voluntary workers must work for::

  • a charity;
  • a voluntary organisation;
  • an associated fundraising body; or
  • a statutory body

In law where an individual is deemed to be a voluntary worker, they cannot be paid anything more than the expenses that they incur either (i) in performance of their duties; or (ii) in order to allow them to perform their duties.

It should be noted that Voluntary workers are not the same as volunteers. The latter will not normally have a contract with an organisation for the provision of certain services. Organisations may decide to reimburse volunteers expenses, but the law does not require this.

2. Apprentices

An Apprenticeship is normally a specific kind of contract that is identified as such, and will detail the rights and responsibilities of the parties involved, the pay, the length of the apprenticeship and the training to be provided. As of October 2010, all apprentices must be paid the NMW. If you are an apprentice and are aged under 19, or aged 19 or over and are in the first year of your apprenticeship you are entitled to the NMW apprentice rate of £2.73 per hour. All other apprentices are entitled to the NMW rate commensurate with their age.

It should be noted that apprentices must be paid the NMW for time they spend training or studying for their apprenticeships, as well for the hours they actually spend working.

3. Internships and Work experience

These have caused significant problems for people and organisations in the past. It is vitally important to understand that it does not matter how an 'internship' or period of 'work experience' is described when it comes to finding out if there is a right to payment. The important thing is the type of work that an individual will be involved in.
Generally speaking where individuals undertake a placement or internship for the purpose of 'work shadowing' they will not be entitled to payment, as they are not performing work.

It is also not uncommon that individuals e.g. graduates or students look to undertake a period of work experience or an internship on a volunteer basis. This will only be the case where the following criteria are satisfied:

  • You have an arrangement with an organisation that does not entitle you to any reward of any kind;
  • You are not required to attend the organisations premises if you do not want to; and;
  • You cannot be dismissed, sued for a breach of contract or have payment withheld for having failed to perform services.

If you meet these criteria, you will not be entitled to be paid. It should be noted however that volunteers are allowed to be paid for out-of-pocket expenses. This can include reimbursement for travel fairs to and from the premises, and the cost of lunch etc.

4. Trial shifts

It is very difficult to determine whether or not an individual is required to be paid the NMW for entering into a 'trial shift' with an organisation. Whilst particularly common in the hospitality sector, there is no explicit legislation or guidance on the requirement to pay individuals for trial shifts. The important point however is that a 'trial shift' remains precisely that, and that a dividing line is drawn between this, and your becoming a 'worker' with a contract of employment.

After having completed a trial shift you are offered a position which you later accept, you must by law be paid the NMW commensurate with your age. In practice it is also wise to agree with an employer, before commencing a 'trial shift' to the payment of reasonable expenses you incur.

The right to pay is an area of the law that is very difficult to understand, and one that can change very quickly. It is important to consider very carefully the work that you are doing, and what you are getting in return for this. It is wise to note that the description attached to your role may not always be indicative of whether or not you are entitled to be paid for the work that you do. As mentioned above, it is the niceties of what you are actually expected or required to do that will determine this.

Key points

  • The right to pay is enjoyed by those that are engaged as workers;
  • The NMW is the minimum hourly payment for workers but applies differently to different people, and will vary according to the age of those that are entitled to it;
  • The right to payment does not only involve work physically done, but can also include other aspects of working life;
  • Different categories of individual enter the workforce for different purposes – it is this purpose that will determine whether or not someone is entitled to be paid for the work that they do.

Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent legal advice on matters that affect you.

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Jurisdiction

UK

Last Updated

Monday, 20 November 2017

Categories

Employment Law

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