Guidance on Payment of Non-Consolidated Payments
1.Genuine Casual Workers
Genuine casual workers, where there is expressly no ‘mutuality of obligation’ (or other clear indicators that a statement of such is not the reality in practice), are not employees and therefore do not have a contract of employment which incorporates the national agreement. Therefore no NCP payments should be made.
2.Zero Hours Contract Employees
The lump sum payment only applies to those whose pay is set by reference to NJC rates.
For further clarification, this excludes those:
a) Whose pay does not directly relate to an NJC defined paypoint (this could include locally defined pay points up to SCP49)
b) Paid on a rate that isn’t automatically changed as a result of NJC settlements (express terms of contract or past precedent will need to be considered), or are;
c) Paid on a rate to which backdating from delayed NJC settlements is not applied (as above).
Where this is NOT the case, then the lump sums should NOT apply regardless of any pattern of work.
To get the NCPs Zero Hours Employees (whose pay is set by reference to NJC rates) must have worked in the pay week that includes 1 December 2014. Furthermore;
a)If they do not work in this week then no lump sum will be consideredas all they have in place at the time is an umbrella contract. This may be considered unfair by those who work regularly but not in that particular week. However it is no more ‘unfair’ than not giving it to permanent employees who leave on 30 November, but giving it to new starters who begin on 1 December. In reality it is less unfair, than that position. However, there has to be a date to which consideration for the payment can be anchored.
b)If they do work in that week, then consideration should be given as to whether there is a regular pattern that ‘trumps’ the notional umbrella arrangement in the sense that the actual working pattern is more akin to a permanent part-time employment one, e.g. they have worked 3 days a week for a considerable period. Establishing any reasonable reference period should help to do this. 1,2 or 3 months would all seem to be reasonable
4. Where it is difficult to determine whether someone is a genuine casual
worker or a ‘zero-hours’ type employee.
It could be argued that it is reasonable that a threshold for a ‘regular’ pattern could
be set for casuals (but one that would not be applied to ‘normal’ employees). For
example anything less than an average of one day a week (0.2 FTE) over the
reference period for a casual could be seen as further evidence as to the umbrella
nature of the arrangement and therefore no lump sum would be paid.
Significant gaps during the reference period may also be relevant e.g. working 2 solid weeks in early October and then not working again until 2 days in the first week of December might equate to 0.2 FTE, but from the outside still looks like a genuine casual. Making the requirement that the individual works at least on one day a week during the reference period might address this.
All of these taken together should in practice minimise the number of anomalies and result in casuals of all categories largely being filtered out.
5.Agency Workers
They DO NOTqualify for the NCPs as the lump sum falls into the exemption in
reg.6(3)(f) of the Agency Worker Regulations 2010:
6.Payment of the Two staged lump sums scp 26-49
Regarding the two-staged lump sums, we consider that the better position to adopt
is that there is a single qualifying date (1/12/14) even though the payment is in two
stages. In the circular, the technical issues (point 7) says “payments should be
based on current scp as at 1 December 2014” and the consultation document talks
about “the remaining balance” to be paid in April which both suggest a single date
for the reference point. This approach is in line with the discussions we had with the
unions which led to the proposal for a two-staged payments.
If this approach is take, councils do not have to consider whether to amend the 2nd
stage payment for those moving up a spine point in April or giving a payment to new
starters from 2 December. However it would mean that those leaving between
December and 1 April would be entitled to claim the deferred payment as they had
been employed at the reference date and councils would presumably include it in the
final salary payment. It would also mean that councils who had chosen not to split
the payment and paid it all in December could not claim back the ‘April element’. As
well as being supported by the rationale in the paragraph above, this approach seem
more straightforward.