EMPLOYMENT LAW OCTOBER 2019
Employment law SOS
This month, our legal expert explores the law around unreturned
work clothing, deducting pay from workers for poor performance
and identifying modern-day slavery in a company’s supply chain
BY CAROLINE ROBINS, PRINCIPAL ASSOCIATE, EVERSHEDS SUTHERLAND www.eversheds-sutherland.com
Ihave a job in a steel mill,
where work is often hot and
dirty. When I started three
years ago, we were issued two
pairs of work trousers and ten
work shirts, which were put
in a communal laundry bin
when dirty to be washed by an
external company. However,
that company recently and
unexpectedly went bust and
has failed to return half the
shopfloor’s uniform, including
my own. I’ve been told I have
to buy and wear my own
clothes (which is ruining them
and may cause safety risks),
when others still have their
uniform. What can I do?
There is generally no legal
requirement for employers to
pay for workwear, even where an
employer has specific workwear
requirements. However,
there are a number of related
considerations that may give you
some legal basis for complaint.
Firstly, it may be part of
your contract of employment
that your employer provides
you with specified clothing
to wear at work. In that case,
your employer may be acting
in breach of your contract by
revoking that provision without
your agreement.
Secondly, you refer to safety
risks. An employer is under an
obligation to ensure that suitable
personal protective equipment
is provided to workers who
may be exposed to a risk to
their health or safety whilst at
work, except where and to the
extent that such risk has been
adequately controlled by other
means which are equally or more
effective. This could include
protective clothing. Therefore,
if any identified risk to health
and safety has been addressed
by providing a certain type of
clothing to workers, the mill may
be acting in breach of its health
and safety obligations by not
arranging replacement clothing.
This is particularly so if your
own clothes would not protect
against the identified risk.
Finally, in a number of
recent cases where employers
have required employees to
purchase uniform or other
specified workwear, HMRC
has determined that the cost
the employee incurs in buying
the workwear is ‘expenditure
in connection with the
employment’. As such, the
cost reduces remuneration
for national minimum wage
concerns, I suggest utilising
your employer’s grievance
procedure. Ultimately, if your
employer is acting unlawfully,
it may be possible to take legal
action, although I suggest first
seeking to address the issue
through the company’s internal
complaint processes.
We’ve recently been beset
by a spate of quality
failings on the shopfloor.
Products are being returned
left, right and centre and
long-standing customer
relationships are falling apart.
One member of the board has
suggested that, as we are able
to track which operator was
in charge of each step of the
process, we should deduct
pay from anyone found making
repeated errors. Is this an
avenue we can legally explore?
Deductions can lawfully be
made from workers’ pay only
in limited circumstances,
namely where the deduction is
required or authorised by law
or a provision in the workers’
contract or where the worker
has given their consent. Docking
pay for repeated errors is not
something that is authorised by
law. Therefore, to the extent that
workers have not authorised any
such deduction, the consent of
the workers will be required to
make the deduction.
To be legally effective,
consent must be given without
undue duress and consultation
should generally take place
with the workers to explain
the company’s proposals and
rationale and to seek to gain that
consent. Gaining consent from
existing workers to a change that
will negatively impact pay may
not of course be possible.
(NMW) compliance calculation
purposes, which could take pay
below the legal limit. Depending
on the level of your pay and any
specification as to the type of
clothes you must wear to work,
your employer may therefore be
in breach of the NMW.
In the first instance, I suggest
that you check your contract to
establish whether there is any
express contractual obligation
on your employer to provide
the workwear. In addition,
check any safety requirements
with your health and safety
representative. You should then
raise your concerns with your
manager. In the event that they
fail to adequately address your
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