Employment Law, HowarthsLaw

NCS and the National Minimum Wage: Are you getting it right?

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The NCS is a well-established scheme which all EFL Trusts will have experience in. Running a couple of times each year, the scheme provides young people with fantastic opportunities and whips up a general feeling of excitement. In spite of the benefits which the NCS brings, from an employment law perspective, the NCS can expose clubs to a significant litigation risk especially in relation to the matter of wages payments.
The headline issue here revolves around individuals getting paid less than national minimum wage (“NMW”) over the period of the NCS programme on the basis that they are “working”, as defined by relevant legislation, throughout the term of the residential, including through the night.
Here at Howarths, we have put together a summary of some general points which each club should be considering in relation to their NCS programmes. This summary is general in nature and you should consider taking specific advice if you are concerned about the risk when considering your own circumstances against the points below:

  1. If you have staff (permanent or fixed term) who are expected to be present during the night on a given NCS programme; would be disciplined if they left site and, are effectively ‘on-call’ should something go wrong with the young adults attending the programme, then it is likely that such time would be regarded as “working time”. This means that NMW would be payable for every hour worked. The penalties for non-compliance with NMW are quite severe so it is imperative that all clubs are paying at least the NMW to all members of staff; fixed term or otherwise.
  2. The question of whether staff are taking appropriate breaks is an area of concern on the NCS. Some thought needs to be had as to whether staff are benefiting from breaks that they are legally entitled to under the Working Time Regulations. It is very likely that time spent with the young adults whilst they are having lunch is not an adequate rest break.
  3. There could be a health and safety risk in asking staff members to work up to 90 hours a week, for up to a three-week period during the NCS. This also poses a secondary risk of failing to provide adequate rest between shifts as required by the Working Time Regulations. This could certainly be an issue for permanent staff if they do not get what the law calls “compensatory rest”. This is most likely to be an issued for fixed term members of staff as there is no opportunity to provide compensatory rest due to their contract ending at a certain point.
  4. Fixed term members of staff working on the NCS should still accrue holiday during the term of their appointment (unless they are genuinely self-employed). This should be at a pro-rata rate of any full-time equivalent employees.
  5. There could be some risk in paying fixed term staff at a certain point in the year for work completed in previous months. Staff should be paid at the end of each week or month for work completed. Failure to do so could be a risk in respect of unfavourable treatment based on fixed term status.
  6. It should be clear in contractual wording whether a permanent member of staff is required to partake in the NCS programme, and whether they will receive any additional pay for doing so.

In terms of these potential issues, Howarths are able to work with clubs to identify solutions that are commercially workable and easy to manage. If you do feel that the way you currently handle the staffing issues in respect of NCS poses some risk to your organisation, then please do get in touch with us on 01274 864999 and we can begin to assist.

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