Category Archives: Working Time Regulations

Apprenticeships – Make Them Work For You!

79035611 - teacher with students in metallurgy workshop

SUMMARY: With the Government championing apprenticeships in the UK, the uptake of these working arrangements by employers is at an all-time high.  The pitfalls however of getting the arrangement wrong can prove extremely costly.  These can be avoided very easily by following a few simple do’s and don’ts.

DON’T use an ordinary contract of employment.

Using an ordinary contract of employment for an apprentice makes it much harder and far more costly for an employer to terminate the agreement.  Apprentices should sign an appropriate apprenticeship agreement which sets out the terms of their engagement.

DO be aware of the minimum durations for apprenticeship agreements.

From 1 August 2012, the minimum duration for apprenticeships for 16 to 18 year olds is 12 months.  For apprentices aged 19 and above, apprenticeships must last between one and four years, unless prior learning or attainment has been undertaken.

DON’T get caught out by the National Minimum Wage Act.

The apprenticeship rate, which was introduced in 2010, applies only if the correct agreement is in place and the apprentice is in their first year of apprenticeship or is under 19 years of age.  In all other instances, apprentices will be entitled to either the development or adult rate.

DO be aware of young workers’ rights under the Working Time Regulations.

Apprentices under the age of 18, but over compulsory school age, have additional working time rights. These rights include stringent daily and weekly limits, and greater rest break entitlements.

A child ceases to be of compulsory school age on the last Friday in June in the academic year in which he/she reaches the age of 16 or if he/she reaches 16 after the last Friday in June, but before the start of the new school year.

Get it right and apprenticeships can play a vital role in the long term development of your workforce as well as contributing to enhanced productivity.

Contact Details

For more details about apprenticeships please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Brexit – What Are the Consequences for Employment Law?

brexitSUMMARY: No one can know exactly what the consequences will be, but below are some of the areas we consider are likely to be affected.

What does the decision to leave the EU mean for employment law? This remains a personal view, as no one can know exactly what the consequences of the leave vote will be. It may be that nothing significant changes immediately (as EU laws form part of UK law), but the lack of a requirement to comply with EU law in the future is likely to shape future legislation and may lead to a reduction in workers’ rights. Here are some of the areas that we consider are likely to change in the foreseeable future:

1. Discrimination – A cap may be applied to compensation for discrimination claims; successful claimants can in theory be awarded uncapped compensation at present.  One of the most extreme examples of this is when a doctor was awarded £4.5m for successful sex and race discrimination and unfair dismissal claims in 2011.

2. Working Time There may be amendments in relation to the Working Time Regulations so that there is a less onerous burden for employers.  This is relevant in relation to holiday, rest breaks and rest periods and the 48 hour working week.  It may be that legislation will be introduced permitting workers to completely opt out of the Working Time Regulations.

3. Agency workers – There may be changes in relation to the protection which agency workers currently enjoy.  The Directive from the EU in relation to agency workers was not a popular piece of legislation and (amongst other things) requires employers to provide equal basic working and employment conditions for agency workers after 12 weeks’ work.

4. Data protection – There will need to be some discussion about the General Data Protection Regulation, which comes into force in May 2018, just before the earliest time (2 years) Britain can exit the EU.  This will replace the existing Data Protection Act and related legislation.  If Britain is to continue to trade with the EU, it will be expected to have minimum standards in place.

5. Redundancy consultation – There may be reduced redundancy collective consultation requirements.  For example, the timescales for consultation may be shortened and/or the threshold for the number of employees to trigger the need to collectively consult may increase from 20 to, for example, 100 employees.

6. Immigration There are likely to be immigration controls introduced for workers coming from the EU and entering the EU from Britain.

We will keep you updated as any changes are announced.

Contact Details

If you have queries on the above areas, please contact fgmedia@fgsolicitors.co.uk.

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Working Out Working Time

working-timeSUMMARY: Are your working practices in line with the Working Time Regulations?

Any organisation will want to manage its hours to meet the needs of the business.  In doing so it will, however, always be important to ensure that the statutory requirements under the Working Time Regulations are satisfied.  Our quick guide below will help you to check if you are doing what you need to do.  It is important to remember these rights apply to both employees and workers.

Holiday

Workers are entitled to take 5.6 weeks (28 days) of paid holiday each year – this entitlement is calculated on a pro-rata basis for those working part-time.

For a more details on holiday entitlements please click here for our fact sheet on holiday entitlements.

Rest periods

Workers are usually allowed the following rest periods:

  • 11 hours’ uninterrupted rest per day;
  • 24 hours’ uninterrupted rest per week (or 48 hours’ uninterrupted rest per fortnight); and
  • an unpaid rest break of 20 minutes when working more than 6 hours per day.

In some cases it may be possible to require a worker to work during a rest period; compensatory rest will usually have to be given.

Average working time

Average working time should not exceed 48 hours per week, unless the worker has opted out.

Night workers

  • Night workers’ normal hours of work should not exceed 8 hours per day on average.
  • No night worker doing work involving special hazards or heavy physical or mental strain should work for more than 8 hours in any day.
  • All night workers should have the opportunity of a free health assessment when starting night work and at regular intervals when working nights.
  • If a doctor advises that the night work is causing health problems, transfer a night worker to day work where possible.

Young workers

Young workers (those under 18 but over compulsory school age) have additional protection.  They:

  • are entitled to a 30 minute unpaid rest break if they have worked for more than 4 hours 30 minutes,
  • must not work more than 8 hours per day,
  • must not work more than 40 hours per week; and
  • must not generally undertake night work.

Opt-outs/agreements

A worker can agree to work more than 48 hours each week by signing an opt-out agreement; young workers cannot opt out.

Other limits, for example relating to night working, rest breaks and rest periods can be modified by agreement.  Usually, this must be done with a collective agreement or workforce agreement.  If such modifications are required, we would recommend you take legal advice.  There are some strict rules which must be complied with to ensure the workers’ rights are validly modified.

Records

Record keeping is important as it will show workers’ rights are being complied with.  Equally, it is a strong indicator of good health and safety practices.

Special rules

Note that there are special rules in relation to certain groups of workers, such as the armed forces, which we have not covered here.

Contact Details

If you would like more information on working time obligations, including how to modify them – please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Carrying over holiday entitlement when on sick leave – how much and when?

HolidaysSUMMARY: In the recent case of Plumb v Duncan Print Group Ltd UKEAT/2015/0071, the EAT dealt with the issue of a sick worker’s right to carry over holiday entitlement.

Holiday is a hot topic for employers – recent decisions on holiday pay have led many employers to re-think how overtime could be taken into account in such payments.

However, an equally vexing problem which employers need to solve is how to deal with the holiday entitlement of those workers who are on sick leave. The EAT considered this in the recent case of Plumb v Duncan Print Group Limited.

Background

As a reminder, there are the following important principles to take into account when considering a sick worker’s entitlement to annual leave:

  1. Workers are generally only entitled to take annual leave in the leave year in respect of which it is due. For example, if the leave year is between January and December, an employee must take all of their annual leave entitlement by the end of December.
  1. An exception to the principle in point 1 is that annual leave may be carried over where the worker was unable or unwilling to take annual leave because he was on sick leave and as a consequence did not exercise his right to annual leave. The worker does not have to have made a request for annual leave in order to carry it over.
  1. On termination of employment, if the worker is entitled to annual leave in respect of any previous leave year which was carried over because of sick leave, the employer should pay the worker in lieu of that annual leave.

When considering carrying over annual leave, we are only referring to carrying over the 4 weeks of annual leave that a worker is entitled to under the (European) Working Time Directive, not the additional 1.6 weeks that a worker is entitled to under the (British) Working Time Regulations or any additional contractual annual leave.

Where clarity was required

There were 2 areas which needed clarity:

  1. How far back should a payment in lieu of holiday go on the employment ending?

In relation to point 3 above, it is clear that a worker should be paid in lieu for holiday they were unable to take because of sick leave.  What was not clear before this case, was how far back a worker could claim holiday for.  To take an extreme example, if they had been off sick for 5 years and had not taken any holiday, if their employment was terminated in the sixth year, could they claim a payment in lieu of all the 5 years of holiday they had been unable to take?

  1. Should a worker unwilling but able to take annual leave be entitled to carry over holiday?

Another point which required clarity was whether a worker who was unwilling to take annual leave during sick leave should be permitted to carry it over, even if he would have been physically able to take the annual leave during the sick leave period, had he chosen to do so.

Facts of the case

Mr P (the employee) was on sick leave between 26 April 2010 and 10 February 2014, when his employment terminated.  Mr P did not take or request any holiday until summer 2013 when he requested permission to take all of his accrued holiday from 2010 onwards.  The employer agreed to pay for accrued holiday for the current leave year (2013/2014) but refused to pay for untaken holiday for the previous 3 leave years.  The leave year ran from 1 February to 31 January.

Mr P brought a claim for payment in lieu of untaken leave for the 2010/2011, 2011/2012 and 2012/2013 leave years. The employment tribunal dismissed his claim and he appealed to the EAT (Employment Appeal Tribunal).

Decision

The EAT allowed Mr P’s appeal in respect of accrued leave for the 2012/2013 holiday year (i.e. he would be entitled to a payment in respect of these years), but dismissed his appeal in respect of accrued leave for the previous two holiday years.

The EAT made it clear that:

  • Sick workers can carry over untaken holiday leave for 18 months after the end of the leave year.
  • Sick workers are not required to demonstrate that they are unable to take their holiday.  They can choose not to take holiday during sick leave.

What does this mean for employers?

  • Employers now have more clarity on how much annual leave an employee can carry over from previous years.  Taking the example given earlier, an employee on the termination of their employment would not be entitled to payment in lieu of annual leave for the entire 5 years they had been off sick.  They could only carry over untaken holiday leave for 18 months after the end of the leave year and on termination would be entitled to a payment in lieu of this holiday.  A practical example of this would be:
    • The leave year runs between 1 January and 31 December.
    • Mr A has a full time contract and is off sick from 1 January 2010 until his dismissal on 1 January 2015.
    • Mr A has not taken any annual leave in this 5 year time period and his contract of employment does not state anything about carrying over annual leave.
    • Mr A would be entitled to a payment in lieu of 8 weeks annual leave on the termination of his employment.  This relates to the annual leave for the leave year ending 31 December 2013 and for the leave year ending 31 December 2014.
  • Employers should check their contracts of employment in relation to the carry-over of holiday entitlement.  If employers allow more carry-over of annual leave than is necessary, employers may want to amend these contracts.  Contracts should also not set out that carry-over of annual leave is never permitted.
  • Employers should permit workers to carry over untaken annual leave while they are on sick leave even if they consider that workers would have been able to take this annual leave had they chosen to do so. Whether to take annual leave during sick leave is a decision for the worker and they are entitled to choose not to take the annual leave even if they would have had the ability to take it.  They are also not required to request the annual leave if they wish to carry it over.

Cases

Plumb v Duncan Print Group Ltd UKEAT/2015/0071

Contact Details

For more details about holiday leave entitlement and its interaction with sick leave please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

Holiday Pay Must Include Commission

FG Solicitors - Holiday Pay CommissionSUMMARY: The Employment Tribunal has decided that, by adding a new provision, the Working Time Regulations 1998 (“WTR”) can be interpreted so that holiday pay must take into account commission.

Background

Mr Lock received a basic salary and was entitled to benefit under a commission scheme where payment was made for sales achieved.   Whilst on holiday, Mr Lock’s rate of pay was calculated with reference to his basic salary; he was also paid commission earned during previous weeks.  He was not however able to generate commission during his period of annual leave, so when he returned to work he received reduced remuneration. Mr Lock brought a claim for unlawful deduction of wages for unpaid holiday pay in the employment tribunal; he argued that holiday pay should be calculated to include all payments he would normally receive.  As the exclusion of commission from the holiday pay calculation appeared to be inconsistent with European law, the Employment Tribunal referred the matter to the Court of Justice of the European Union (“CJEU”).

Decision of the CJEU

For those of you who were keeping pace with the issue of what payments other than basic pay should be included in the calculation of holiday pay, you will remember that the CJEU concluded that Mr Lock’s commission payments must be taken into account when calculating holiday pay for the first 4 weeks of the 5.6 weeks statutory holiday period.

The following were key in relation to the CJEU coming to its decision: Mr Lock’s commission payments were directly and intrinsically linked to the performance of the tasks he was required to carry out; during annual leave Mr Lock could not generate any commission and, as a consequence, on his return would receive reduced remuneration; and the financial impact of this on a worker may deter them from taking their annual leave.

The CJEU referred the case back to the Employment Tribunal to consider how the decision sits alongside our domestic law.  Basically the tribunal would have to consider how holiday pay should be calculated.

Decision of the Employment Tribunal

The Employment Tribunal has concluded that the WTR can be interpreted so that commission must be included in holiday pay.  In order to arrive at this position the WTR should be read as if they contain a new Regulation 16(3)(e), which effectively confirms that, for the purposes of calculating holiday pay, a worker with normal working hours whose pay includes commission or similar payments shall be treated as having remuneration which varies with the amount of work done.

What Does this Mean for Employers?

In terms of calculating holiday pay, this means that a week’s pay for the purposes of calculating holiday pay will be calculated using the employee’s average remuneration to include commission payments over the 12 weeks before the calculation date. This calculation method will only apply in respect of the first four weeks’ leave not the whole of the 5.6 weeks maximum statutory holiday entitlement.

Any commission previously earned which falls due whilst the employee is on holiday will also need to be paid. 

Case

Mr S J Lock (and others) v British Gas and others ET case number 1900503/2012 & others 

Contact Details

For more details about this decision and what payments should be taken into account when calculating holiday pay please contact:

 fgmedia@fgsolicitors.co.uk

+44 (0) 808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

How the Working Time Regulations Can Work for You

Web update picture - lunch breakIn an increasingly fast paced world in which KPIs and targets dominate, and technological advances can create a 24/7 365 days per year working culture it is maybe unsurprising that a BUPA study has shown that just 30% of workers take a lunch break and that 28% don’t stop for a break at any time during the day. Although it has been reported elsewhere that this results in an additional 19 working days per year which employers benefit from at a nil cost other studies have shown that the loss of the lunch break actually loses UK companies close to £50 million a day in lost productivity.

THE LAW:

With few exceptions all workers are entitled to a rest break of 20 minutes when a day’s working time is more than six hours – often contracts go beyond this minimum entitlement and specify a one hour lunch break.

THE IMPLICATIONS:

  1. Dip in productivity – reports have shown a dip of 40 minutes a day on average for those who skip lunch
  2. Increased number of sick leave days per year – it is reported that those remaining at their desk for prolonged periods are more likely to develop health problems ranging from back and neck pain to more serious illnesses such as cancer, heart disease
  3. Increase in mistakes
  4. A loss in creativity

WHAT CAN EMPLOYERS DO?

In short, employers should lead by example and encourage the taking of breaks. This can be achieved in a number of ways for example setting fixed time lunch breaks or implementing a system of flexible timed lunch breaks. Employers may also want to consider some innovative ways of introducing well-being initiatives during break times such as partnering with fitness trainers or health practitioners such as physiotherapists. These initiatives may also increase the take-up of lunch breaks by employees and ultimately achieve a significantly more productive and cost effective workforce.

Contact Details

For more details on the Working Time Regulations and how contracts can be drafted to maximise the benefits from the employer’s perspective please contact:

fgmedia@fgsolicitors.co.uk

+44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.