Holiday pay for part-year and casual workers has never been easy. A recent case has confirmed that holiday pay rules have changed.
What were the rules before?
The rules on holiday pay aka annual leave used to mean that full-time staff were entitled to 5.6 weeks of annual leave (this bit hasn’t changed).
Some people found it challenging to calculate 5.6 weeks holiday as a pro-rata calculation for staff who worked part of the year or irregular hours. So, it became widely accepted that employers could calculate accrued annual leave based on 12.07% of hours that staff actually worked.
Why did a change happen?
A part-time music teacher by the name of Mrs Brazel challenged the old calculation. Mrs Brazel only worked during term time and she had to take her annual leave during the school holidays even though she was on a zero-hours contract.
Mrs Brazel’s employer (The Harper Trust) had used the 12.07% calculation. Mrs Brazel did not think this was fair. She believed she should receive holiday pay based on her normal rate of pay excluding school holidays.
An Employment Tribunal disagreed with Mrs Brazel. Mrs Brazel appealed in the Employment Appeal Tribunal and they reversed the decision. However, an appeal was made in the Supreme Court which confirmed the holiday pay calculation of 12.07% was incorrect.
What is the Law on holiday pay now?
The Supreme courts decision on 20th July 2022 is now Law.
The outcome is that all staff whether they are full-time, part-time, part-year or zero-hour workers are entitled to 5.6 weeks of annual leave.
A week of annual leave will be calculated using the last 52 weeks of the year.
This does mean that some part-year workers and irregular hour workers will receive more holiday entitlement.
Who does this affect?
This will have an impact on all businesses that use staff for irregular hours.
Some obvious industries will include, teaching and education as well as tourism and hospitality.
We are encouraging businesses to :
Check and amend employee contracts and worker contracts to ensure they are compliant with Employment Law.
Check calculations when staff are taking holiday pay.
I am very lucky to have had my work experience with Orchard Employment Law, the team are some of the most inclusive and supportive people I have ever met. When you think of an internship or work experience at a Law firm, the first thing that pops up in your mind is running around delivering tea and coffee to different offices and people. I thought this would be the case for me, yet as soon as I stepped foot in the Orchard office and met the team, I was surprised at the number of activities planned that would help me gain valuable experience of what law really means. I was put to work, and rightly so, attending webinars, doing research of various legal terms and reading tribunal bundles that would provide a true insight of what employment law entails.
Before starting my work experience, I had not realised the importance and value of LinkedIn, a good CV, and perfecting interview skills yet Jemma and the team here at Orchard have emphasised and brought me up to speed with everything I would need to know. Before my interview with T W Tutors, Jemma and I practiced a mock interview and gave me feedback on what works well and gave me suggestions on how to strengthen my skills.
Jemma also allowed me to tag along to a Women in Business event brunch! This was a few hours of networking and listening to inspiring businesswomen talk about their journeys and sharing similar experiences that women face in the workforce.
The team at Orchard are extremely accommodating and supportive, and although I have only completed 4 days of work experience, I feel as though I have been here forever. They have taken me in as one of their own and shown me the ins and outs of Employment Law.
You may have heard about the UK’s 4-day working week trial. 70 UK companies of varying sizes are trialing a 4-day working week where employees will work fewer hours and receive the same pay until January 2023.
The trial involves 3,300 employees, and researchers will explore whether this has an impact on productivity and revenue among other things.
It is a voluntary scheme, but it has got many employers wondering whether or not this is something that they should consider.
Orchard Employment Law explores some of the pros and cons of a 4-day working week.
Better Work-Life Balance
Did you know that the 5-day working week was invented by Henry Ford who realised that employees were happier and more productive when they had a free day to spend money or time with their loved ones?
The same could be said for a 4-day working week. Staff are likely to feel valued and be productive knowing that every weekend has at least 3 days.
That being said, this could backfire. Expecting an employee to complete the same amount of work in 20% less time could cause more stress and have a negative impact of the employee’s wellbeing.
A 4-day working week can be great for those roles which are not client-facing and we wholly agree that you should be focusing more on output than bums on seats. If the business is able to achieve a more results-based strategy, then it should but there are some instances when time is important.
These include customer-facing roles where a customer may want to communicate or speak with a staff member.
Moving to a 4-day working week could save you money as an employer.
Happier employees are more likely to stay in a role for longer, increasing staff retention and saving the business money in recruitment.
If employees are able to be more productive in 4 days than 5 days, they will be less likely to burnout which could mean less money lost due to sickness.
It can also help with attracting talent. Employees are looking for more benefits. You might not be able to offer 20% more pay than your competitor, but you might be able to offer 20% less working time.
Studies in other countries have also shown that a shorter week helps to improve diversity.
Other things to consider
Moving to a 4-day working week would be a contractual change. It would also impact the number of holidays which an employee is entitled to. If you do decide to adopt this 4-day week, you will need to update your policies and documents.
Need help? Contact us
This blog is not intended to be a substitute for advice as it does not consider individual circumstances. For specific support, contact us at www.orchardemploymentlaw.co.uk
This month we have a guest blog from Anna Wilkinson, Anna has been telling us at Orchard about some insurances that employees should have in this hybrid and working from home world.
Have you ticked the box?
So you’ve brought an insurance policy for the protection of your
business, your clients & your staff. Well done… but your box of
‘insurance responsibility’ is yet to be ticked unless you have also
completed these tasks;
Private Car Insurance?
Did you know that “Social, Domestic, Pleasure & Commuting will
only insure you to drive to & from a single place of work? As an
employer, if your staff have to drive ANYWHERE that is not 1 place
of work, you should be advising (and preferably checking) that your
staff take out ‘Business Use’ on their private car insurance policies. This applies
even if they drop the post off on their way home. If you don’t want your staff to have uninsured claims or be charged with ‘Driving Without Insurance’ (which could hold a hefty fine and an IN10 on their driving license – or worse, a driving ban) then I urge you to ensure you have explained this.
Do your staff ever work from home? Have they told their home insurance provider? Have you told your Office/Electrical Equipment Insurance provider? If your staff work from home then you should advise them to let their home insurance provider know, just to ensure that any personal claims are insured. Some insurers may see this as a positive because the home is occupied more frequently. If your staff are using your business equipment then you should also jump on the phone to your Insurance provider because unless your PCs/electrical equipment are listed to be insured for ‘All Risks’ or specifically listed at your employee’s home address, then they probably aren’t insured.
Do you or your staff ever have business visitors to a home address? Did you know that if your business visitor was to become injured whilst at your home address your office/business Public Liability Insurance wouldn’t cover the claim? If you or your team have anyone at their home address – or even outside of the office for that matter – then you need to let your Public Liability provider know. Your/the staff members home insurance will not extend to cover business activities.
Have you told your Employer’s Liability provider that your staff work from home? Have you carried out a DSE assessment out on your employee’s home-working set up? Have you sorted out your HSE policies and procedures, i.e. Lone Working? Your Employer’s Liability Insurance will only cover claims if you have carried out your legal responsibilities. If you haven’t checked up on how safely your staff are working from home & documented this, then you can’t expect the claim to be paid when an employee trips over a phone cable.
Of course, these examples apply mainly to clerical activities, but perhaps your business does online yoga, applies logos to merchandise, or makes jam?! In any scenario where your staff are in their home address – or otherwise – you need to ensure that those insurances that you hold at your business premises, still apply and protect them.
It needn’t cost an awful lot more, this isn’t about trying to squeeze more into your annual premiums, it is making sure that you aren’t paying for an insurance policy that doesn’t offer you that peace of mind and protection that your business & your staff actually need.
Insurance is one of the last professional industries where you can obtain professional advice for ‘free’ – this won’t last forever so I strongly advise that you utilise this whilst you still can. I am always happy to give advice and assist you & your business with your insurance needs.
Covid restrictions are lifting but what does this mean for employers? Let’s start by looking at the law around Covid restrictions across the UK.
In England all restrictions will be lifted from Thursday 24th February 2022, this includes the legal requirement to self-isolate if you test positive for Covid19.
From 21st March 2022, the rules in Scotland will also end, including the legal requirement to self-isolate if you have had a positive test.
Self-isolation rules were never a legal requirement in Northern Ireland but there was strong guidance to do so, the guidance remains in place but all other restrictions have been eased.
Wales still has a self-isolation mandate in place, we are expecting an update from the Welsh Assembly on 4th March.
What about Statutory Sick Pay (SSP)?
Employees in England have been entitled to Statutory Sick Pay from day 1 of sickness if the sickness is related to Covid. Employers were able to claim the Statutory Sick Payback from the Government from day 1 to day 3 through the Statutory Sick Pay Rebate scheme.
This scheme will end on 17th March 2022 which means that employees will be unable to claim SSP for the first 3 days of sickness.
What about Company Sick Pay (CSP)?
Some businesses have a Company Sick Pay scheme, this varies between organisations and may even be different for employees depending on their role and duration of employment. Employers and employees should check and follow the employment contract and any sick pay policies.
If there is no legal requirement to self-isolate, should staff attend work?
Although there may be no legal requirement to self isolate a business can still have its own set of rules. Generally speaking, if employees are unwell it is better for them to stay away from the workplace.
Working whilst unwell can result in:
Staff taking longer to recover
Staff feeling undervalued
Other staff members and service users becoming unwell
Other staff members feeling uncomfortable
What do I do if testing is no longer free?
There will still be the option to purchase tests. If this is the case you cannot insist that employees pay for tests but you may be able to purchase tests as an employer and ask employees to take the test.
There is no legal requirement for employees to test or to let their employer know the outcome.
What should I be doing right now?
Now is a great time to think about how your business will operate in this new era of managing Covid. Set out some clear guidelines on what staff can expect and what you expect of staff.
Let’s not throw the baby out with the bathwater. Employers still have a duty to protect staff. We have all learned some great things about hand washing, PPE, ventilation, and respecting one another’s personal space. We would encourage you to keep these going to protect all staff from bugs and viruses in general.
I have more questions who can I turn to?
The information in this blog is not intended to be advice as each situation can vary. If you do need additional support with Covid related illness of employees, absence management or any other HR or Employment Law issue get in touch with us at http://www.orchardemploymentlaw.co.uk
2022 is another year of changes in the world of Employment Law and HR. In this blog, we are talking about some of the changes that we know are already going to happen.
Vaccination Status For Frontline NHS Staff
As we know, it was made compulsory for Care Home Staff to be fully vaccinated against COVID-19; this was implemented on 11th November 2021.
Following this, the Health Secretary, Sajid Javid, has said that it will also become compulsory for frontline NHS Staff to be fully vaccinated against COVID-19, subject to medical exemptions. This will be set into action from April 2022.
Workplace Sexual Harassment
In July 2021, the Government responded to consultations regarding workplace sexual harassment. Their proposal outlines plans to instil a duty on employers to prevent sexual harassment in the workplace and to introduce new protections against harassment by third parties. This would require employers to take all reasonable steps to prevent sexual harassment from transpiring amongst all employees.
This new legislation could also see employers held liable for harassment caused by third parties in the workplace.
Tips And Gratuities
This has been a long time coming as the original consultation on tipping, gratuities and service charge was made in 2016.
In September 2021, the Government published its response, ensuring workers in the hospitality sector keep tips on a fair and transparent basis. Employers will also be required to have a written policy on tips and record how tips are dealt with.
Right To Request Flexible Working
Recent consultation has extended the existing right to request flexible working from day one of employment instead of the former 26 weeks. It is important to note that this is a right to request, and it is still up to the employer whether or not to grant the request.
Bank Holiday Entitlement During the Platinum Jubilee
Employers should be aware that the late May Bank Holiday will be moved to Thursday 2nd June 2022, and an additional Bank Holiday has been granted on Friday 3rd June 2022 to celebrate the Queen’s Platinum Jubilee.
Now the confusing part ensues; employees are entitled to the extra Bank Holiday if the wording in their Employment Contract states so.
Let us explain.
If the Employment Contract states that an employee’s holiday entitlement includes Bank Holidays and then details the standard Bank Holidays that are recognised as part of the holiday entitlement, then it is down to the employer’s discretion whether or not to permit the holiday.
If the Employment Contract states that the holiday entitlement is plus Bank Holidays, the employee would be entitled to the extra day.
New Right To Carer’s Leave
In September 2021, the Government published its response to the 2020 consultation on Carer’s Leave. It has confirmed that it plans to legislate an entitlement to Carer’s Leave for employees as a right from day one.
The leave will consist of one week (5 working days) of unpaid leave per year for those employees with long-term caring responsibilities. This can be taken as full days or half days.
Leave can be taken to provide care, or arrange care, for a person with a long-term care need, e.g. illness, injury or issues relating to old age.
Employees will be required to give notice that is at least twice the length of the time being requested, plus one day.
Neonatal Leave And Pay For Employees
In March 2020, the Government announced its intention to introduce Statutory Neonatal Leave for parents whose babies require neonatal care.
It is expected that the amount of leave will be one week for every week that the baby is in neonatal care, up to a maximum of 12 weeks. This will be paid leave, with parents being entitled to a statutory rate of pay set by the Government each year.
Redundancy Protection for Women and New Parents
The Government has also confirmed its intent to extend the redundancy protection period which is currently available to mothers on Maternity Leave.
Protection will apply to pregnant women from the point they notify their employer of their pregnancy until 6 months after a mother has returned to work.
It will also apply to those taking Adoption Leave and Shared Parental Leave.
This was originally announced in December 2019 and postponed due to a change in the Parliamentary Work Schedule brought about by the pandemic.
While the date of its implementation is unannounced, it is speculated to conclude sometime in 2022.
We will keep you updated on what’s to be included within the bill.
National Minimum Wage Amounts
National Living and Minimum Wage amounts will increase again in April 2022, as follows: –
Current Rate New Rate
National Living Wage £8.91 £9.50
21 to 22 Year Olds £8.36 £9.18
18 to 20 Year Olds £6.56 £6.83
16 to 17 Year Olds £4.62 £4.81
Apprentices £4.30 £4.81
That’s all for now. We will, of course, keep you updated on any other changes that come to light.
In the famous words of fictional character Forest Gump, “Life is like a box of chocolates, you never know what you’re going to get”.
2021 has certainly been a box of chocolates for us and our friends, we started the year working from home and in Lockdown and we got excited about eating outdoors (in the cold) when restrictions started to ease in April.
2020 taught us that we needed robust systems but a flexible attitude and this has been a benefit to us this year.
Employment Law is one of the fastest-changing laws in the UK so it is no surprise that there were changes. Some of the changes included:
The implementation of settled and pre-settled status of EU nationals
The end of the furlough scheme
Increases in minimum wage and sick pay
Compulsory vaccination for workers in the Care sector.
As well as some HR trends such as The Great Resignation and a more common approach to Hybrid and Working From Home.
This year we have seen some highs within Orchard Employment Law. Our wonderful clients have continued to trust in us to support them through the ups and downs of employing people. Of course, we have to mention our delight in successfully winning employment tribunal cases for our clients.
Our team has grown yet again, you may have noticed that our online presence has stepped up since George, our in-house marketeer joined the team.
We saw the return of in-person events and although we remained cautious it was great to see people at The Women In Business Big Show and The Education People Show.
Jemma has been super busy being featured in the media on television and radio shows such as Times Radio, BBC South East, ITV, BBC Radio Kent, KMTV, and Daily Mail. She was also a speaker at many virtual and in-person business events including, Chartered Institute of Management Accounts (CIMA), Omni Pro’s CPD Store, Bristol Live with In-house Recruitment, and Tourism South East’s AGM.
We got behind the bid to make Medway a City of Culture, unfortunately, Medway didn’t win the bid but it was a great opportunity to pour back into our local towns.
We are super pleased to confirm that we remain certified with ISO9001, meaning that we have good quality management systems and standards. The external auditor was impressed with all of the measures we put in place to ensure our clients have the very best and he found that we go over and above what is expected.
Looking back, we can say that we have had a good year despite challenges. We look forward to next year’s box of chocolates and wish you a wonderful Christmas and a happy new year.
Diversity in the workplace has definitely been a hot topic this year. It’s becoming more common for people to expect a business to have more than an Equality and Diversity policy but to show how they are taking steps to create a more diverse workforce.
Last week, Jemma attended an In-house Recruitment event and the speakers confirmed many of the things that we have been saying for years. She heard firsthand how employing people from marginalised groups is good for business, people from these groups bring fresh ideas to the workplace, problem-solving is improved as new perspectives are brought to the group and clients love to see people that they can identify themselves with.
At the conference, Jemma sat in on a talk by Neil Armstrong of Tripad. A good measure of how well an organisation is doing in terms of hiring talent from a diverse ethnic background is to look at the demographics of the location.
Neil discussed working with a City Council whose location was made of 40% people from Black, Asian and others from an Ethnic Minority background however, the workers from this background only made up 18% of the workforce.
The council wanted some practical solutions to see whether or not this percentage could be improved. One measure was to introduce blind applications, this is where CV’s and applications are stripped of personal information which can identify a person such as a name, suffix, date of birth, and address. The result of this meant that the workers from Black, Asian, and Ethnic Minority backgrounds increased from 18% to 39%.
Automating The Interview Process
Another business at the exhibition found that hiring managers would ask candidates the same question but in a different way, this was not done deliberately but it did mean that some candidates had an unfair advantage.
The business decided to automate the way in which questions were asked and they too found an increase in diversity of the candidates that were hired.
Use A Diverse Panel
A well-known psychology theory is that people like people like themselves. There is something comforting about familiarity and this is often the case in interviews. The thing we like might not be that it is a man or a woman or that they are black or white, it could be that we have a similar mannerism or taste in music of fashion sense.
So, it makes sense to interview people as a panel and to ensure that the panel is not made up of the same types of people. Some businesses will argue that they are too small and that they don’t have enough people from diverse backgrounds who can form a panel. There is a solution to this. You can borrow people from other businesses, ask for a non-executive director or even put someone on a panel who is not yet management.
What Else Can You Do?
Of course, these three steps are not the only way to improve diversity at work and there is no guarantee that the diverse talent hired will be retained. There are other factors that need to be addressed such as inclusivity and company culture, ensuring that leadership is diverse even if that includes mentorship and leadership programs, dealing with internal bias and so much more.
That being said, if you are looking for 3 practical steps to hiring a diverse talent pool you could try the above.
We have all seen the disruption caused by the petrol panic and regardless of whether you think its due to a shortage of fuel, a logistical dilemma or a symptom of panic buying, the outcome is the same.
Some staff are affected by travel disruption because they are unable to get fuel or due to the congestion caused by queues to petrol stations.
So what can you do if your staff are unable to get to work?
The good news is that over the last 2 years many businesses have proved how adaptable they are and so lots of businesses now have the equipment and measures in place to allow staff to work from home. If you are able to allow staff to work remotely during this period, then this may be the option for you.
You will pleased to know that there is no requirement to sing karaoke like James Cordon but car sharing could help with the fuel dilemma. It may save on costs if staff share a lift and it’s better for the environment. You could offer incentives to staff who car share such as a free lunch or voucher. Of course we are aware that Covid19 is not over yet so we would suggest good cleaning and optional mask wearing to help reduce the spread of the virus.
Change Working Hours
This won’t help staff to get fuel but it could mean they are able to travel when there is less traffic on the roads. This will help with fuel consumption and ease the frustration of sitting in traffic.
Allow Annual Leave
If home working is not an option then consider allowing staff to take some annual leave or toil. You can also insist of staff using annual leave but employers should be mindful that they need to give twice as much notice as the leave that they want staff to take. EG, two days notice = one days annual leave or four days notice = two days annual leave.
If there is no annual leave available then you might want to allow staff to take unpaid leave.
I need to close my business due to staff shortages do I have to pay them?
As long as employees are willing and able to work then you will have to pay them even if you have been forced to close. The key being able and willing so those staff who are unable to come to work will not get paid.
You might not have to pay staff when you close if:
*You have the contractual option of lay-off (see our other blogs for more information)