When is a uniform not a uniform?

…it may seem like an obvious answer as surely something that identifies a person as being an employee or representative of a business is a uniform.

We’d all know military or emergency services uniform if we saw it; we’d all know the uniform worm by flight attendants and employees of other well know organisations, but if (for example) a pub and restaurant told its serving staff to wear black shoes, black trousers and a black or white top, is that “uniform”?

In a case that would be of interest to employers and employees alike, the Employment Team at Wilson Browne Solicitors, led by Jennie Jahina, continues to deal with complex and interesting cases.

One such case involves advising a client with an HMRC investigation into alleged National Minimum Wage breaches – an interesting case as the client has always paid (or so they believed) well above the NMW. However, HMRC maintain that they have failed to take into account some more esoteric matters (such as “does specifying either a colour of shoe, or a style of shoe constitute a uniform?”) which, if taken into account, would have the effect of pushing salaries below the NMW for certain reference periods. Plus, crucially, this client has inherited this liability via TUPE (TUPE is where employees are transferred to another employer as part of a legal merger or sale of the business)

Whilst we continue to argue the case, employers would be well advised to identify potential pitfalls which could push your organisation below NMW payments at any time (even if only for 1 week or month of the year) before the HMRC start any investigation – and this way avoid possible reputational damage. Likewise, employees should be clear on whether any prescribed clothing constitutes a uniform.

Whether you are an employer or an employee, the Wilson Browne Employment Team can advise you on all things relating to employment policies.