Ensuring employers don’t pay for failing to comply with incoming payroll legislation

New requirements for employers to provide payslips are on the way – the Employment Rights Act 1996 (Itemised Pay Statement) (Amendment) (No.2) Order 2018  comes in to effect on the 6 April 2019. Once implemented, all workers will have the right to obtain a written, itemised payslip at any time before or after their wage or salary has been paid to them. Previously, this obligation extended to employees only. The new law comes after a recommendation by the Low Pay Commission in 2016 and forms part of the Government’s raft of initial responses to the Taylor Review on Modern Employment Practices. The Taylor Review, published in July 2017 set out key recommendations to increase the rights of workers and this new legislation is aimed at ensuring that low paid workers can work out whether they have been paid correctly.

The widening of the obligation will increase transparency in relation to wages and will assist workers in challenging discrepancies. It will also highlight if an employer is falling short of their minimum pay obligations (National Minimum Wage and National Living Wage).

Aside from being necessary evidence for pay disputes, payslips are required by workers for many other purposes – securing credit for a property, securing rental accommodation, proof of loss of earnings and proof of employment generally.

The extension of the right to include all workers will now mean workers in the gig economy and those on casual or zero hours contracts will be entitled to an itemised pay slip where previously they were not.

Is it fair to dismiss for action which falls short of gross misconduct?

It is well known that dismissal can result from a single matter which is usually found to amount to gross misconduct, or as the result of more than one event, with the prior matters resulting in written warnings and/or a final written warning. Indeed, most disciplinary procedures outline this process and generally include examples of what will normally be treated as gross misconduct.

However, in Quintiles Commercial UK v Barongo the question for the Employment Appeal Tribunal (EAT) was whether it was fair for Quintiles to dismiss Mr Barongo for conduct which was initially classified as gross misconduct but subsequently downgraded to serious misconduct.

Quintiles supplies staff for pharmaceutical companies. Mr Barongo started working for them in October 2012 and was latterly engaged to sell drugs for Astra Zeneca. On 5 January 2016 he was dismissed on notice on two grounds. First, he had failed complete Astra Zeneca’s compliance training course by the deadline of 3 November 2015 and, second, failing to attend their compulsory training course on 19 November 2015. Mr Barongo did not deny the allegations and he also accepted that they amounted to misconduct on his part. However, he contended that he had been dealing with other matters. He said that he had not intentionally failed to engage with the training but he had chosen to priorities other matters. This had been at a time when he was on a performance improvement plan.

There was a disciplinary hearing conducted with his line manager which took place by telephone. As the EAT pointed out, conducting the hearing by phone might not have been best practice but it was not in itself unfair. His line manager concluded that the duty of trust and confidence which ought to exist between employer and employee had been broken and, as a result, Mr Barongo was dismissed on notice, for gross misconduct.

He appealed against the decision and the appeal was heard by one of the employer’s directors, Mr Athey, who took the view that there had been a breach of the duty of trust and confidence, but that it amounted to serious rather than gross misconduct.

Mr Barongo submitted a claim of unfair dismissal to the Employment Tribunal. The Tribunal took the view that the downgrading of the misconduct from gross to serious was highly significant: