Despite the implementation of The Minimum Wage (Guernsey) Law over four years ago, it is alarming to see that some Guernsey employers still haven't woken up to the reality that employees must be paid a minimum hourly rate.
Nowhere is this more prevalent than in the hospitality and catering industry - an industry where live-in accommodation is provided and working long irregular hours is common place. Is it any wonder that some employers find it difficult to keep track of who's worked and when?
Well, according to the Employment Tribunal in Guernsey, this is no excuse!
And the fact that the Tribunal will assume an employee is being paid below the minimum wage unless the employer can prove to the contrary was demonstrated in a recent case, which should serve as a warning to all employers.
Stark words were delivered to the operator of the Jerbourg Hotel when it was found by the Tribunal on two separate occasions to have failed to pay staff the minimum hourly rate during the periods of their brief employment.
In this case, a husband and wife team were jointly employed by the hotel to act as a kitchen porter and chambermaid during last year's busy summer months. It was agreed that they would each receive a salary of £1,000 per month, less any deductions for live-in accommodation at the hotel, set at £303 per month to include all meals, linen and laundry facilities.
Neither the husband nor the wife retained any record of the hours actually worked but they were rostered to work shifts equal to 40 hours per week. A copy of the staff roster was pinned to a notice board that listed the proposed working hours for each member of staff for each week. However, it was not uncommon for staff to swap shifts with one another or work longer hours; amendments were to be handwritten on the roster sheet, but it was accepted by the hotel when giving evidence that manuscript changes were not always made. As such, the hotel had to concede that it retained no precise record of the hours actually worked by staff and that there was no system in place for management to check the hours stated.
Based on the roster sheets presented in evidence to the Tribunal, the hotel calculated that the husband had worked a total of 300 hours during the summer period; his wife had worked a total of 322 hours over the same period. Taking into account their basic salary, less the accommodation allowance, the hotel asserted that the couple had been paid over and above the minimum wage. The couple disagreed.
Although they had not retained any formal record and their evidence was based solely on their recollections, he claimed to have worked a total of 477 hours during the summer period and she worked a total of 392 during the same period. On that basis, the salary less accommodation allowance made it clear that the couple had in fact been paid considerably lower than the statutory minimum. The Tribunal agreed.
Many would argue that it was unreasonable of the Tribunal to side with the husband and wife based solely on what hours they actually thought they worked, whereas the hotel proffered roster sheets in evidence (albeit the hotel conceded they may not have been entirely accurate). However, this is the main stumbling block for employers - the law is drafted in such a way that there is an automatic presumption that an employee is being paid below the minimum wage unless the employer can prove to the contrary. Consequently, an employer is already at a disadvantage when faced with such a claim and the Tribunal takes no mercy.
As decided in these recent cases, the Tribunal will take a dim view of any employer that fails to maintain accurate, verifiable written records of the hours actually worked by staff; roster sheets which may be subject to change are not themselves sufficient. Therefore, regardless of the industry, a reasonable employer must ensure that accurate records are maintained. Failure to comply with this statutory requirement may render an employer guilty of an offence and liable to a fine.
In addition, the hotel's failure to provide a sufficient record of the hours worked meant that it was unable to prove that the couple had been paid the minimum wage; the presumption could not be rebutted and the hotel was liable to repay to the couple all the remuneration that they should have received had it complied with the statutory requirement to pay the minimum hourly rate.
Let this be a warning to all employers - the burden of evidence rests solely on you to prove that your employees are being paid the minimum wage. The absence of time sheets, contemporaneous records or corroborative evidence will be no defence and the Tribunal will be duty bound to uphold your employee's claim if you are unable to prove to the contrary.
If you need any advice on this issue (or indeed any other employment related matter), please do not hesitate to give the Employment team a call. We are only too happy to help.
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