Monthly Archives: December 2009

The history of Christmas and work

“And yet,” said Scrooge, “you don’t think me ill-used, when I pay a day’s wages for no work.”

The clerk observed that it was only once a year.

“A poor excuse for picking a man’s pocket every twenty-fifth of December!” said Scrooge, buttoning his great-coat to the chin.  “But I suppose you must have the whole day.  Be here all the earlier next morning.”

Scrooge to his clerk in Dickens Christmas Carol

Until 1871 there were no bank or public holidays in the UK.  There was no statutory entitlement to annual leave.  When Scrooge complained about giving his clerk a paid day off he was doing something that was customary but not legally required.

In 1871 an act of parliament created four bank and public holidays:  Easter Monday, August bank holiday, Boxing Day and Whit Monday.  Scotland had different holidays and had New Years Day and Christmas day from this point on.

During the 1970s more additional holidays were added until we got to the basic eight bank and public holidays in the calendar today for England and Wales.

There is no general legal right to take these days as holiday – though taking them can count towards statutory annual leave, introducing under Working Time Regulations in 1998 .

Staff may be contracted to work on bank and public holidays.   Most employers offer premium or overtime rates for these days, though there is no general legal need to do so.   Increasingly with variable rosters and annual working hours, bank and public holidays are part of the normal working week.

Employers have the right under working time regulations to ‘designate’ leave (tell staff when they must take leave).  Many arrange an annual shut down for the gap between Christmas and New Year and require employees to save some of their annual leave for this period.

If you are planning Christmas arrangements for work, check out our humorous post from HR.

Merry Christmas – whether you are working or not.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye

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Filed under employment law, holiday

Snow stopped play?

 

Traffic Jam

Many people struggle bravely in to work when it snows, while others stay at home.  Some work from home, whilst others have no option but to take care of their children as schools close.  Some workplaces close due to bad weather, and others open.

 

Who has a right to be paid?

The UK has a remarkably flexible labour market, and the answer depends on what type of contract you have got with your staff, and whether you keep the workplace open. There is no general right for employees who don’t turn up for work to be paid, and if you open your workplace and the do not turn up, you may not be obliged to pay.  Many employers do pay more than they are required to, but it is important to know when you are choosing to pay more, and when you have to pay.

Workplace remained open (hourly paid workers)

If the workplace remains open as usual, and the employees fails to make it in to work due to travel difficulties, they are not automatically entitled to be paid for their absence.  If they turn up late and they decide to go home early, they are entitled to be paid for the hours they actually work.

If you send the employee home early, this has the same effect as closing the workplace for part of the day (see below).

Employees can ask you to allow them to take the day(s) as paid leave.  You are not obliged to authorise paid leave retrospectively but if you do so, make sure the holiday records are kept properly up to date.   You cannot decide to make this a day’s leave without the employee’s consent.

Employees who have to remain home to make arrangements for their children when the schools shut are entitled to unpaid dependants’ leave.  They are only entitled to be paid for the time off if you have a contract or a policy that says they are.

Workplace shut

You are only entitled to withhold pay for a lay-off period (when the workplace is closed) if your contract with the employee gives you that right.  Check your contracts carefully.

If your contracts do provide for ‘unpaid layoffs’, employees are still entitled to guaranteed pay at the appropriate rate for the first five days lay off in any 3 month period.  For these purposes a day’s lay off is a day when less than 50% of ordinary work was provided.  Employees are entitled to 50% of their normal basic pay subject to a maximum of £21.50 per day.

Working at home

Many employers have working systems that mean employees could work from home – either as part of their normal working from home routine, or on an emergency basis.  These individuals are working and should be paid for the time they were working.

Salaried staff

There is an historic tradition in the UK (fading fast) that distinguishes between staff on annual or monthly salaries, and those on an hourly rate – the old ‘white collar-blue collar’ divide.  Traditionally salaried staff are not paid by the hour, do not receive overtime when they work more hours, nor receive a deduction when they work less.

These staff are viewed as being paid for service, rather than for the particular work performed.   This group of individuals is generally entitled to pay unless the contract provides otherwise.  You should check your contracts carefully.   This applies even if no work is actually performed or where the employee is prevented from working due to factors beyond their control, as long as the employee remains ready and willing to serve the employer.  Ready and willing would normally mean making an effort to get to work where it is safe to do so.   Locally based staff who could have made it in would not be automatically entitled to pay if they did not turn up.

Many organisations no longer feel comfortable about having a two tier contract system, and increasingly have one single status contract that applies to all.  So it’s possible your hourly paid staff may be in the same contractual position as salaried staff.  A lot depends on what your contracts say.

Annual hours and flexi-hours contracts

Check the terms of your contracts – it may be that time not worked does not count for payment, and missed work will have to be performed at another time.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye

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Filed under contract, employment law, flexible working, pay

Reasonable People

We all use words to conduct our daily life.  If I could really see inside your head, I might find that what you associate with things such as ‘good’  or ‘wicked’ might be different to mine.  Many teenagers use ‘wicked’  to describe something they like!

English employment law tends to use  everyday words to describe some very specific concepts.     An employment tribunal judge  talking about ‘reasonable in the circumstances’ ( a key test of whether a dismissal is fair)  will not necessarily be using ‘reasonable’ in the same way as a typical manager.

I doubt whether anyone has woken up and thought:  “I will be unreasonable today and make decisions about my staff that make no sense whatsoever”.   However rational (or irrational) our thinking might be, we naturally tend to believe that our actions and decisions were ‘reasonable’.

Employers are often bewildered when employment tribunals don’t agree with them!    Many believe that tribunals are biased against them  (just as employees often believe the opposite).

This is because an employer’s personal interpretation of reasonable (whatever that might be) is not based on the same concepts as an employment tribunal’s.     A tribunal will be looking for a documented process to show how the decision made.  This may often include what alternatives were  considered and why they were rejected. 

Managers can be extraordinarily reluctant to go through this process – feeling that however  they arrived at their conclusion, it is a right one.   HR can be very keen to document the mechanics – e.g. the minutes of a meeting, who saw whom and when, but can be very reluctant to offer any challenge to a manager who is going down an eccentric or dangerous track.  As in any other decision making process, if the method of gathering data and evaluating it is defective, there is a very high chance the decision will be wrong.  Sometimes we all need someone to say – “Hey – pay attention to that, it could be important” or “Are you sure this is really the key issue?”

Tribunals do not look at whether a dismissal decision was right or wrong, but whether it was ‘within a range of reasonable responses’.  If the business can demonstrate a thoughtful process and can identify why other alternatives were not appropriate, it is rarely a problem to meet this test.  

Aligning your decision-making process with what the business needs, and adding in a fair degree of self-challenge at each stage, will allow you to make appropriate decisions for the business without undue fear of legal challenge.

Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy.   Tel: 08452 303050  Fax: 08452 303060  Website : www.irenicon.co.uk.  You can follow Annabel on twitter – http://twitter.com/AnnabelKaye and check our regular articles and news throughout the autumn on our blog site – https://irenicon.wordpress.com/

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Filed under employment law, employment tribunal, unfair dismissal