WORKING HOURS
Employers cannot make adults work more than 48 hours a week on average, normally averaged over 17 weeks. The exceptions to this are jobs where the working time is not measured and the worker is in control, jobs in the armed forces, emergency services and police in some circumstances, security and surveillance jobs, domestic service jobs in a private household, jobs where 24-hour staffing is required, certain seafaring and sea fishing jobs and jobs working on vessels in inland waterways.
If you are 18 or over you can choose to opt out of the 48-hour limit. Employers must not allow staff to opt out in the following categories: workers on ships or boats, airline staff, workers in the road transport industry, for example, delivery drivers. Staff who travel in and operate vehicles covered by EU rules on driver’s hours, for example, bus conductors and security guards vehicles carrying high-value goods, also come under this category.
People aged 16 and 17 can’t normally work more than 8 hours a day or 40 hours a week and there is no opt out to this.
NATIONAL MINIMUM WAGE
The National Minimum Wage (NMW) sets minimum hourly rates that employers must pay their workers. The current rates as at January 2015 are £6.50 for workers aged 21 and over, £5.13 for those aged between 18-20 and £3.79 for those under 18 and £2.73 for apprentices under 19 or over 19 but in their first year of their apprenticeship.
Workers are also entitled to the minimum wage if they are part-time, casual workers, agency workers, workers and homeworkers paid by the number of items they make, apprentices, trainees, workers on probation, disabled workers, agricultural workers, seafarers and offshore workers. You aren’t entitled to the minimum wage if you are self-employed, a company director, a voluntary worker, a worker on a government employment or pre-apprenticeship scheme or on a Jobcentre Plus Work trial for 6 weeks, a non-family member living in the employer’s home who share in the work and leisure activities such as au pairs, a family member of the employer living in the employer’s home, higher and further education students on a work placement of up to 1 year, people on the following European Union programmes: Leonardo da Vinci, Youth in Action, Erasmus, Comenius, workers younger than the school leaving age, members of the Armed Forces, prisoners, people living and working in a religious community and share fishermen.
If an employee thinks he or she is not being paid the minimum wage, the issue should first be brought up with their employer.
The Government run a Pay and Work Rights Helpline 0800 9172368 which will provide confidential advice about the problem.
HOLIDAY ENTITLEMENT
Almost all workers are entitled to a minimum of 5.6 weeks paid holiday per year. This is known as your statutory leave entitlement or annual leave. For those working a 5-day week they must receive at least 28 days paid annual leave per year(including Public holidays). A part-time worker is entitled to pro rata holiday so if you work 4 days a week your annual leave will be 4 x 5.6 = 22 days. If you work more than 5 days a week you are still only entitled to 28 days holiday. Bank holidays do not have to be given as paid leave. An employer can choose to include these holidays as part of a worker’s statutory annual leave. Your employer can offer you more leave than the legal minimum but they do not have to apply all the rules that apply to statutory leave, to the extra leave.
Holiday entitlement can be built up during maternity, paternity and adoption leave and while off work sick.
You are entitled to a week’s pay for each week of holiday leave that you take. If you work shift work with fixed hours, a week’s holiday pay equals the average number of weekly fixed hours you worked in the previous 12 weeks at your average hourly rate. Similarly if you have no fixed hours your holiday pay is calculated on the basis of your average pay over the previous 12 excluding any weeks where you weren’t paid at all.
If you are changing jobs you may be able to take whatever is left of your statutory annual holiday leave during your notice period. How much you get depends on how much of the holiday year has passed. You should get paid for any leave, in respect of your statutory entitlement as a minimum, not taken even if you have been dismissed for gross misconduct.
You have to give notice when you want to take holiday leave. The notice period is generally at least twice as long as the amount of leave you want to take unless it says differently in your contract. An employer can refuse a request but they must give you as much notice as the amount of leave requested. The refusal must be on the grounds of the timing of the leave. An employer cannot refuse to let you take any holiday at all.
Your employer can tell you to take leave over the bank holidays and restrict when leave can be taken for instance during very busy periods. This may be stipulated in the employment contract or it may be standard practice in the industry. The notice period for this is at the employer’s discretion but is generally at least twice as long as the leave the employer wants their staff to take.
SICK LEAVE
If you are off sick for more than 7 calendar days you must give your employer a doctor’s ‘fit note’. It will say that you are either ‘not fit for work’ or ‘may be fit for work’. If it says ‘may be fit for work’ your employer should discuss any changes that might help an employee return to work.
Statutory holiday entitlement is built up while an employee is off work sick. Any holiday entitlement that is not used because of illness can be carried into the following leave year. You can choose to take holiday rather than sick leave because for example you do not qualify for sick pay. If you are ill just before or during your leave, you can take it as sick leave and take the missed leave at a later date.
If you become disabled as a result of your illness, your employer should consider making reasonable changes to your working conditions and this could include working fewer hours or adapting equipment for you to use at work.
If you are off work sick for more than 4 weeks you may be considered long term sick. As a last resort you may be dismissed but first your employer must usually consider if you can return to work under changed conditions such as working fewer hours or doing a different job. Employers should consult their employees about when they could return to work and whether their health is likely to improve. If you think you have been unfairly dismissed you may be able take your case to an Employment tribunal.
MATERNITY RIGHTS
A pregnant employee has the right to both 26 weeks of ordinary maternity leave plus 26 weeks of additional maternity leave. A woman does not have to take 52 weeks leave, but she must take 2 weeks leave after the birth and 4 weeks if she works in a factory. 39 weeks of this maternity leave could be paid leave which may be Statutory Maternity Pay (SMP), Maternity Allowance or Contractual Maternity Pay.
Contractual Maternity Pay could be greater than statutory pay or for longer than 39 weeks according to the employment contract. To qualify, an employee must tell their employer by the end of the 15th week before the expected week of childbirth that she is pregnant, the expected week of childbirth, and the date she intends to start maternity leave. This date is normally any date no earlier than the beginning of the 11th week before the expected week of childbirth. The employee must give the employer proof of pregnancy within 21 days of the start date of her SMP, in the form of either a letter from her midwife or doctor, or her MATB1 certificate which are usually issued by doctors and midwives 20 weeks before the due date. A woman can still get Statutory Maternity Leave or SMP if her baby is stillborn after 24 weeks of pregnancy or dies after being born.
To qualify for Statutory Maternity Pay an employee needs to have worked continuously for at least 26 weeks ending with the 15th week before the expected week of childbirth, and needs to have an average weekly earnings at least equal to the lower earning limit for National Insurance contributions. SMP is payable for 39 weeks. For the first 6 weeks the rate is 90% of the average weekly earnings. The following 33 weeks will be paid at the SMP rate or 90% of the average weekly earnings, whichever is the lower. The SMP rate is reviewed every April.
Maternity Allowance is paid through the Benefits Agency to women who do not qualify for Statutory Maternity Pay. They must have been employed or self employed for 26 weeks out of the 66 weeks before the expected week of childbirth, to qualify.
All pregnant employees are entitled to reasonable time off with pay for antenatal care.
The employee has the right to return to her original job or a suitable alternative on the same terms and conditions. If a redundancy situation arises, she should be offered a suitable alternative vacancy if possible. Otherwise she may be entitled to redundancy pay.
There is no statutory right to time off for breastfeeding or a requirement for employees to provide specific facilities for expressing milk. The Health and Safety Executive’s advice however is that employers are legally required to provide somewhere for breastfeeding employees to express milk. Toilets are deemed unsuitable for the purpose.
PATERNITY RIGHTS
Where a partner is having a baby or adopting a child, a father may be eligible to either 1 or 2 weeks paid Ordinary Paternity Leave or up to 26 weeks’ paid Additional Paternity Leave where the mother/co-adopter returns to work.
Ordinary Paternity Leave must be taken in one go and cannot start before the birth and must end within 56 days of the birth. There are different rules for adoption.
The length of Additional Paternity Leave will depend on how much unused maternity (or adoption) leave the partner has. Leave can start 20 weeks after the birth if the mother has returned to work. It must end on the child’s first birthday.
The statutory weekly rate of Ordinary Paternity Pay and Additional Paternity Pay is £138.18 (as at January 2015) or 90% of your average weekly earnings, whichever is the lower.
In order to qualify for Ordinary Paternity leave, an employee must be taking time off to look after a child and be either the father, the husband or partner of the mother (or adopter) or the child’s adopter. In addition the employee must have worked for the employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth, be employed up to the date of birth, earn at least £111 before tax and give the correct notice.
In order to qualify for Additional Paternity Leave and pay, the child’s mother must have qualified for either Statutory Maternity Leave or Pay, or Maternity Allowance or Statutory Adoption Leave or Pay. She must have returned to work and no longer be getting any of the aforementioned benefits. The employee must have worked for the employer continuously for at least 26 weeks by the end of the 15th week before the expected week of childbirth and still be employed by the employer the week before the leave or pay starts, is earning on average at least £111 a week before tax. confirms the start and end dates of his partner’s leave, confirms his partner has at least 2 weeks left of her maternity or adoption pay (APP only), and has given the correct notice.
SHARED PARENTAL LEAVE
The Children and Families Act 2014
The Act gives parents more choice as to how they share the care of their child during the first year, allowing both parents to maintain a strong link with the workplace. It introduces provisions for shared parental leave, statutory shared parental pay and other statutory rights.
The Shared Parental Leave Regulations apply to babies whose expected week of childbirth (EWC) is on or after 5 April 2015, and to children matched with a person or placed for adoption on or after the same date.
The total amount of shared parental leave available is 52 weeks less (where there is a leave curtailment date) the number of weeks of SML taken before that date, or less the number of weeks’ leave taken before she returns to work. If the mother is not entitled to SML, but does get SMP, the total number of weeks available is 52 weeks less the number of weeks for which SMP is payable.
In order to qualify an employee must have 26 weeks’ continuous employment with the same employer. In addition the partner must have worked for at least 26 weeks out of the 66 weeks preceding the EWC or adoption matching date and earned at least £30 gross per week for any 13 of the 66 weeks.
Similar provisions are made for shared parental leave where a couple is adopting a child.
KIT – Keep in Touch wth the Workplace
The Act increases the number of days women are entitled to work to keep in touch with the workplace (KIT) to 30 during the period of shared parental leave.
How the Parental Leave can be Taken
Under the new Regulations, after the mother has taken the two weeks’ compulsory maternity leave immediately following the birth, the remaining period of 50 weeks can be taken however the parents choose. For example both parents could take the first two weeks off (as compulsory maternity leave and ordinary paternity leave) and then have a period of shared parental leave together. One could then go back to work and then later return to the caring role swapping roles with their partner (subject to the agreement of the employer).
Ordinary paternity leave of 2 weeks can still be taken in conjunction with shared parental leave.
Shared Parental Pay
The total period of paid leave is 39 weeks.
To qualify for shared parental pay, an employee must have earned an average weekly salary of at least the lower earnings limit (£109 in the tax year 2013-14) for 8 weeks before the EWC/adoption placement date.
The first 6 weeks are paid at 90% of the mother’s average gross weekly earnings. The remaining weeks are paid at the flat statutory rate – £138.18 or 90% of the average gross weekly earnings, whichever is the higher figure.
Ante – Natal Appointments
The Act states that an employee with a ‘qualifying relationship’ with a pregnant woman or her expected child is entitled to time off to attend 2 ante-natal appointments , with the maximum time allowed for each being 6 and a half hours.
A person with a qualifying relationship is the husband or civil partner or someone living with the pregnant woman ‘in an enduring family relationship’ but are not a relative, or they are the father of the child. He could also be the parent under the Human Fertilisation and Embryology Act 2008 or a potential applicant for a parental order under the Act.
If an employer refuses to allow time off for ante-natal appointments the employee has the right to complain to an employment tribunal.
Ante – Adoptors
The Act allows for people who are going to adopt a child to have time off work to meet that child and also have time off to go to meetings about the adoption. These are for meetings or visits arranged by a social worker.
One of the parents adopting can take paid time off work 5 times, the other parent can take unpaid time off work twice.
EXCEPTIONAL PARENTAL LEAVE
If you are an employee and have caring responsibilities for elderly relatives, children or other dependents, you are entitled to time off for dependents to deal with unforeseen circumstances.
If you have worked for an employer for a year, you are entitled to 18 weeks unpaid parental leave for each child born or adopted. The leave can be taken up to the child’s fifth birthday. If the child has disabilities the period is extended to the child’s eighteenth birthday. The leave should be taken in blocks of weeks not as individual days off unless the child is disabled or the employer gives his or her consent. You cannot take more than 4 weeks off a year. You need to make a request to your employer 21 days from the start date of the parental leave. Your employer may as for the request in writing.
If you change jobs you can carry over any untaken parental leave, but you cannot take it until you have worked for your new employer for a year.
FLEXIBLE WORKING
The Children and Families Act 2014
The Act made important changes to flexible working. It extended the right to request flexible working to all employees with 26 weeks’ continuous service from 30 June 2014.
The Act gives qualifying employees the right to apply to his/her employer for a change in their terms and conditions of employment if the change relates to the hours worked, where they are required to work, the times they are required to work and other aspects of their terms and conditions as laid down in the Act.
It puts a duty on employers to consider requests in a ‘reasonable manner’.
The employee’s request must be in writing and include the date, the changes to the working conditions which are being applied for, the impact that the change may have on the employer and how this could be mitigated, when the employee would like the changes to start, and a statement that it is a statutory request and if and when a previous flexible working application has been made.
The employer is required to inform the employee of their decision on the request within the ‘decision period’ which is 3 months beginning with the date on which the request was made or a longer period if that has been agreed between the employer and the employee. The decision should be given in writing.
The employer must consider all applications, and think about the benefits and any possible adverse effects on the business of the proposal. He/she can turn down the request if one or more of the business grounds detailed in the Act can be proved. These grounds include the burden of additional costs, an adverse effect on the ability of the business to meet customer demand, the impossibility of reorganising the work among the existing employees, the inability to recruit extra staff, an adverse effect on quality or performance, the lack of work available during the periods the employee wishes to work and planned structural changes.
If an employee fails to attend two consecutive meetings to discuss the application or an appeal, without a good reason, the employer can assume that the request has been withdrawn.
DISMISSAL
To be dismissed legally your employer must have a valid and fair reason which they can justify, and show that they acted reasonably in the circumstances. They must have acted consistently to all employees and have investigated fully if a complaint has been made against you. They are also required to follow a fair procedure – as a minimum, you should be made aware of the case against you, be given an opportunity to state your case and be given the right of appeal.
A part-time or fixed-term worker must be treated no less favourably than a permanent or full-time employee.
You must be given the notice stated in your contract or the statutory minimum, whichever is longer.
You have a right to a written statement giving the reasons for your dismissal if you have completed 1 year’s service or you are on a fixed-term contract which has ended and not been renewed.
FAIR DISMISSAL
You can be dismissed fairly if you are not able to do you job properly. However your employer must first follow disciplinary procedures and give you a chance to improve for instance through training. You can also be dismissed if you have a persistent or long-term illness which makes it impossible for you to do your job. However before taking action your employer should look to support you and allow you a reasonable amount of time to recover.
You can be dismissed for ‘gross misconduct’ for example for violent conduct, without the normal disciplinary procedures. You can also be dismissed if, by continuing to employ you, your employer breaks the law for example if a driver loses his licence (statutory) reason, or because of a ‘substantial reason’ for example you’re sent to prison.
UNFAIR DISMISSAL
A dismissal may be legally ‘unfair’ if your employer doesn’t give a good reason for the dismissal or fails to follow the company’s formal disciplinary or dismissal process. Examples of where your dismissal is likely to be automatically unfair include if you joined a trade union, asked for flexible working, took part in legal industrial action that lasted 12 weeks or less, needed time off for jury service, applied for or were on maternity, paternity or adoption leave, exposed wrongdoing in the workplace (whistle blowing), tried to enforce your right to Working Tax Credits, were forced to retire. In the latter case compulsory retirement is only legal if your employer can objectively justify it. Even so you can challenge the decision at an Employment tribunal.
EMPLOYMENT TRIBUNALS
To claim unfair dismissal at a tribunal you need to have worked for the employer for at least 2 years if you started the job on or or after 6 April 2012. If you started before that date the period is 1 year. The claim must be made within 3 months of the dismissal.
DISCRIMINATION
Discrimination in employment takes many forms, and occurs in all kinds of work settings. It entails treating people differently because of certain characteristics, such as race, colour or sex, which results in the impairment of equality of opportunity and treatment.
It is unlawful to discriminate on the grounds of age, disability, sex, race, religion, sexual orientation, being pregnant or having a child, being married or in a civil partnership, being or becoming a transsexual person, These are called ‘protected characteristics’.
Discrimination can be:-
Direct – treating someone with a protected characteristic less favourably than others.
Indirect – putting rules or arrangements in place that apply to everyone, but that put someone with a protected characteristic at an unfair disadvantage.
Harassment – unwanted behaviour linked to a protected characteristic that violates someone’s dignity or creates an offensive environment for them.
Victimisation – treating someone unfairly because they’ve complained about discrimination or harassment.
The Equality Act 2010 provides for protection from discrimination.
At work discrimination can occur during dismissal, training, recruitment and/or redundancy. It can also manifest itself in employment terms and conditions, pay and benefits, promotion and transfer opportunities
If you feel you have been discriminated against complain directly to the person or organisation, use mediation (ACAS or your Trade Union) or make a claim in a court or Employment tribunal.
LIABILITY OF COMPANY DIRECTORS FOR DISCRIMINATION
Read Kathleen Donnelly’s (Henderson Chambers, Birmingham), article on the case of Bungay and Paul v Chandel and others, Employment Appeal Tribunal (EAT) 2011. The Tribunal held that two company directors were jointly and severally liable for damages related to the discriminatory dismissal of two employees.
DISCIPLINARY MEASURES
An employer should have written disciplinary rules and procedures to deal with employee performance and conduct, and the employer must tell staff about them. The rules must say what is acceptable and unacceptable behaviour in the workplace and what action the employer will take if the rules are broken. They should follow the ACAS code of practice on disciplinary and grievance procedures. Not following the code isn’t illegal. However, if someone wins an Employment tribunal and the employer didn’t follow the code, then their award could be up to 25% more.
The rules could cover acceptable and unacceptable behaviour, absence and timekeeping, health and safety, use of phones and internet. They should outline what will be treated as gross misconduct which is likely to lead to dismissal without notice. Examples of gross misconduct include fraud, theft and physical violence.
The rules must name someone an employee can appeal to if they are unhappy about a disciplinary decision.
ACAS provides guidance about running disciplinary proceedings professionally and fairly. It suggests the employer has a disciplinary meeting with the employee at which the employee can be accompanied. A letter should be sent stating what action the employer is to take. This could be no action, a written warning, a final warning, a demotion, dismissal or mediation with a co-worker. An employee has the right to appeal against the decision made after a disciplinary hearing.
The ACAS Helpline provides advice on disciplinary issues. Telephone: 08457 47 4747 Textphone: 08456 06 16 00
REDUNDANCY
Redundancy occurs when employers need to reduce their workforce. If you are being made redundant you may be eligible for redundancy pay, a notice period, ant accrued but untaken holiday, consultation with your employer, the option to move into a different job or time off to find a new job. You must be selected for redundancy fairly, for example, due to level of experience or capability to do the job and not on the basis of age, gender, disability etc.
Reasonable methods of selection include, last in, first out, asking for volunteers, disciplinary records, staff appraisal, reapplication for jobs.
If an employee feels unfairly treated they can make a claim to an Employment tribunal for unfair dismissal.
If you are an employee and you’ve been working for your current employer for 2 years or more, you will be entitled to half a week’s pay for each full year you were under 22, 1 week’s pay for each full year you were 22 or older, but under 41, 1 and a half week’s pay for each full year you were 41 or older, subject to a cap on weekly pay. Redundancy pay under £30000 is not taxable.
You’re not entitled to statutory redundancy pay if you are a member of the armed forces, House of Lords and House of Commons staff, a domestic servant working in the private home of a person who is part of the employer’s immediate close family, a ‘share fisherman’ paid only by a share in the proceeds of the catch, a Crown servant or an employee in a public office, or an employee of the government of an overseas territory. In addition some apprentices are ineligible.
An employee can claim statutory redundancy pay if they are eligible and have been temporarily laid off (without pay or less than half a week’s pay) for either more than 4 weeks in a row or for more than 6 non-consecutive weeks in a 13 week period.
An employer must give a statutory redundancy notice period before employment ends. This is at least 1 week’s notice if an employee has worked between 1 month and 2 years, 1 week’s notice for each year if employment is between 2 and 12 years and 12 weeks notice if the employment is for 12 years or more. The employer may provide pay in lieu of notice.
An employer should consult an employee if he intends to make him or her redundant. Lack of consultation is the basis of a claim to an Employment tribunal. If 20 or more employees are being made redundant, the consultation should be between the employer and a trade union or an elected employee representative.
SELF EMPLOYMENT
The question of whether a worker is an employee or self employed is a difficult one.
Read Kathleen Donnelly’s (Henderson Chambers, Birmingham), article on the employment case of Westwood v The Hospital Medical Group, Court of Appeal 2012. The decision is likely to be of interest to businesses and public sector organisations which engage self-employed people as part of their business model, and may now find themselves exposed to potentially costly claims.
The Wilkes Partnership is a Midlands based law firm offering experienced advice on Employment matters to both employers and employees.