The Electronic Payslip: Widespread Illegality?

In April 2019 the statutory right to a payslip, under section 8 of the Employment Rights Act 1996, was extended to all workers however the right for employees is a longstanding one. Section 8(1) sets out that a “worker] has the right to be given by his employer, at or before the time at which any payment of wages or salary is made to him, a written itemised pay statement.” The Act goes on to describe the items that need to be recorded.

I am going to go out on a limb (there don’t appear to have been any cases on this) and suggest that the widespread practice of online payslips is in breach of this right. Where an employer collates payslips there are three main ways these are made available to workers:

  • A physical payslip is provided to a workers, either by post or in person.
  • An epayslip that is emailed to a worker, often password protected.
  • An online payslip which is only accessible by the worker logging onto a website, sometimes a website that can only be accessed at work

I do not see that there are any issues with the first two bullet points but, increasingly, it seems it is the third that is becoming the preferred mode of making payslips available. Where I have a problem with this is whether it can it really be said that placing a payslip on an online repository in which the onus is upon the worker to access amounts, to quote the actual statutory right, to the payslip actually being “given by his employer”.

In the online payslip model the payslip is not delivered or given to the employee on any normal and literal construction of the statutory language. They have, at most, made the statement available should the worker elect to seek out the information from a secure repository (that is no bad thing as a separate facility). And, given we are talking her only of domestic legislation I do not see an argument why the legislation should not be interpreted literally.

Indeed, in the one case I have identified specifically addressing the statutory right, the decision points towards the inadmissibility of relying upon acts of the worker to satisfy the right. In Coales v John Wood & Co [1986] IRLR 129 (EAT) the Tribunal found that the right to receive a statement is absolute and is not contingent on the request of an employee [now worker]. The EAT in Coales expressly found that

S.8 establishes an inherent right which creates an inherent obligation on an employer to provide the employee with an itemised pay statement at or before the time at which any payment of wages or salary is made and that right exists whether or not the employee exercises any claim under it.”

It seems to me that the requirement under the online payslip model for a worker, without any prompting and of their own volition, to actively seek out the online payslip that has been stored is, in reality, little more than the imposition of a requirement that the worker ‘request’ or “exercise any claim” to a statement, albeit a request by electronic means, despite Coales itself identifying that this is precisely what an employer cannot require.

I do not think this is just a technical breach, a system that places the onus on a worker to seek out a statement is not one in which the worker is given contemporaneous updates of their pay and allow them to identify more serious pay anomalies.

And of course for those online systems that require access from employer facilities this breach becomes potentially more serious as it applies to those workers absent from the workplace – it seems entirely possible to me that denial of a payslip to those on long term absence could amount to unfavourable treatment or a particular disadvantage to certain workers with protected characteristics. The EAT decision in South West Yorkshire Partnership NHS Foundation Trust v Jackson & Ors [2018] UKEAT 0090_18_2211 in which a worker who did not receive an email at home when on maternity leave which was accepted as discriminatory  is sufficiently analogous to this issue to indicate that a denial of an itemised payslip is also potentially unfavourable treatment under the Equality Act 2010 which could open up discrimination claims and, if I am right, illegal conduct would surely be hard to amount to a proportionate means of achieving any legitimate aim.

Or am I wrong?  – it often happens!

 
Want to stay updated? 

If you have found  this post helpful please think about subscribing to the email list, like us on Facebook or follow us on Twitter.

Enter your email address to follow this blog and receive notifications of new posts by email.