Worker Wins Case for Minimum Wage Breach

An employee in the healthcare sector with the support of his trade union, UNISON, has won his case for breach of minimum wage after proceedings were lodged at an Industrial Tribunal in Belfast.

Darren McGavigan is employed by Western Urgent Care as a receptionist and porter.  In both roles Mr McGavigan is contractually required to work a certain number of basic hours per month.  He is further contractually entitled to receive enhancements for working certain additional unsocial hours so that, for example, Saturday working would attract an enhancement of pay at a rate of ‘time and a half’.

The National Minimum Wage Regulations 2015 regulate workers’ minimum hourly rates of pay for hours worked according to age.  When this increased to £7.20 per hour for workers over 21 in April 2016, Western Urgent Care did not increase Mr McGavigan’s basic or enhanced hourly rate of pay as it was required to do.  On this basis he lodged a grievance with his employer, but his concerns were not upheld.

The employer was of the view that, if they added up all the actual hours worked and produced an average hourly rate, as this was in excess of £7.20, they were complying with their statutory and contractual obligations.  They further argued that any payments for unsocial hours were ‘discretionary,’ akin to a ‘bonus,’ and were not part of Mr McGavigan’s contract of employment.

The law requires employers to provide employees, when paying them, sufficient written information so that the employee is aware of: the gross amount paid; the amounts of any fixed/variable deductions from the gross amount and the purposes for which they were made; the net amount paid and, where different parts of the net amount are paid in different ways, the amount and payment method in relation to each part payment. However, Western Urgent Care decided to ‘simplify the procedure’, by unilaterally changing the way in which wage slips provided to staff were itemised.  The new format did not provide a break-down of the total pay that differentiated between the net basic and net unsocial hours’ payments, as the previous format did. 

Supported by his Trade Union, UNISON and Thompsons’ NI solicitors, Mr McGavigan contended that the methods of calculation were not correct and that Western Urgent Care were also in breach of their obligations regarding the lack of detail contained within his payslips. 

After a contested hearing, the Industrial Tribunal concluded that that new format of payslips ‘masks’ the fact that the wrong calculation was being used; and that it ‘beggars belief’ that Western Urgent Care could genuinely think that enhanced payments for unsocial hours were ‘discretionary.’ It further said that there was a ‘compelling inference’ from the employer’s conduct that its method of calculation was ‘deliberately designed to short-change the claimant.’

The Tribunal concluded that the employer made unlawful deductions from the client’s wages and ordered that Mr McGavigan be compensated for the shortfall, and also ordered the employer to pay costs of £5,000.

Mr McGavigan said: “I want to thank UNISON and the Employment Rights Unit at Thompsons NI for all their help.  I would not have won this case without them”.

UNISON Regional Organiser, Joe McCusker, speaking on the Tribunal’s decision said:  “This ruling from the Tribunal is significant in that employers cannot circumvent minimum wage legislation by changing how they pay workers, without their agreement, by combining separate contractual allowances and enhancements with their basic rate of pay. “ We encourage workers to check their terms and conditions of employment and payslips to ensure that they are getting the correct hourly rate of pay in accordance with minimum wage legislation.”