Stepping into Quarter 4 of 2020

Adverse weather, Furlough, Redundancies and Annual Leave

October is almost upon us and so now is a good time to start preparing for the colder months. We have a few hints and tips for you for coping with the colder weather: –

Adverse Weather

It happens every year. Snow, ice, frost and fallen trees can cause havoc on our roads and also on public transport, so much so that you could have staff who are late to work or even unable to make it in at all because of the winter weather.

You are under no obligation to pay staff who are unable to attend work, but it is always a good idea to put things in place which allow your staff to maintain pay and also for your business to continue to function.

Think about allowing staff to arrive later at work, work from home (if they are not already) or make up their hours on another occasion.

If you do decide to pay staff who cannot attend work, ensure that they are told that it is an act of goodwill and is not intended to be contractual.

School Closures

This year has been a difficult year with the school closures that we have already had because of the pandemic.

Unfortunately, the weather can also be a factor when it comes to school closures and sometimes, even if your staff can travel to work, their children’s schools may decide to close, meaning that your staff have no childcare and, therefore, might be unable to get into work.

As above, you are under no obligation to pay staff who are unable to attend work but it might be a good idea to think about what staff could do if they have no childcare.

Many businesses will have had staff working from home due to the pandemic and know that this can be successful. So letting staff work from home when their children’s school is closed is a good idea. It may well be that your staff are still working from home anyway.

You should also think about allowing staff to arrive later at work or make up their hours on another occasion.

In past years, we have suggested allowing staff to bring their children into work to give the children some educational, interactive and inspiring experiences. However, this year due to the pandemic, we would not suggest this.

Annual Leave Reminders

Some businesses have their annual leave year starting on 1st January and ending on 31st December. If this is the case for your business, now is the perfect time to remind staff about their unused annual leave allowance.

Employees who have been furloughed during the pandemic will continue to have accrued statutory annual leave entitlements, as well as any additional entitlement provided for in their Employment Contract.

You do not usually have to allow staff to roll over their unused annual leave into the next year unless there are exceptional circumstances such as maternity leave or illness.

However, the Government passed new emergency legislation at the start of the pandemic to ensure businesses have the flexibility they need to respond to the pandemic and to protect staff, and all other workers, from losing their statutory annual leave entitlement.

This means that staff are able to carry annual leave forward if the impact of pandemic meant that it has not been reasonably practicable to take annual leave this year.

Where it has not been possible, the untaken annual leave may be carried forward into the following two leave years.

If you are not allowing your staff to carry their holiday forward into 2021 and 2022, now is the time to remind them that they still have unused leave to take.

And believe it or not, you are also able to refuse an annual leave request if it is not a convenient time for your business or if there are too many staff off.

That being said though, it is essential that staff have time off to rest, so you should be reasonable when refusing holiday requests.

Many employers are also unaware that they can impose annual leave on their staff. So if your business has a down period or if your staff have unused annual leave, you can simply give them a day off. Remember to give notice though.

Sickness

It is inevitable that staff will become sick over the winter months with colds, coughs and flu, as well as the continuing risk of contracting COVID-19.

It is important that all businesses have a clear Sickness Policy in place so that staff know who to contact, and by what times and by what means, if they need to call in sick.

Furlough

As you will all be aware, the Government’s Furlough Scheme is ending on 31st October 2020, meaning that businesses will be required to go back to paying their staff their full wages as well as employer contributions to NIC and any pension schemes.

Redundancies

Unfortunately, due to the Furlough Scheme ending, sadly some businesses may need to think about making staff redundancies.

It is important that businesses follow the consultation regulations carefully when making redundancies, including the correct time limits if more than 20 staff will be made redundant.

Remember to also keep in regular contact with your staff if redundancies are inevitable. Staff will already be feeling anxious about their futures and keeping them up-to-date with current progress and consulting with them about how to move forward it important.

Preparations for a Second Wave of COVID-19

We are all expecting there to be a second wave of COVID-19 in the future, whether that be in the next couple of months or after Christmas.

If and when it does happen, it is important to be ready in terms of how your business is going to be able to function. Make sure your systems and processes are all in order and tighten up all those that aren’t, including a Homeworking Policy and keeping in regular communication with your staff.

If you would like any other information on things to deal with in the run-up to winter, drop us an email at info@orchardemploymentlaw.co.uk

The importance of managing misconduct (even if it is a small issue)

It is important to deal with employee matters as soon as possible, even if they are minor issues.

One reason for this is to avoid what we call ‘The Straw Effect’. The straw effect is where managers ignore small issues (usually because they want to be nice or do not wish to make a fuss) and then act what seems like unreasonably for a minor issue when in reality is is ‘the last straw’ or ‘the straw that broke the camel’s back.’

Employees need to be aware of what is and what is not acceptable in the workplace and if they are not informed of these then they will behave and carry out their work in the way(s) that they feel are correct.

It may be the case that minor issues are dealt with by having an informal chat with the employee. If the employee then carries as before then formal disciplinary actions may be required. If an employer does not deal with conduct issues at the time that they occur, there is very little that can be done about these in the future. They can be used as historical evidence in any future matters but, unless a disciplinary or conduct hearing is held and warnings are given to the employee at the time of the incident(s), an employer cannot give warnings for these incidents in the future, without reasonable reasoning. Misconduct issues should be dealt with and investigated as soon as they become known to management.

Failure to investigate misconduct not only sends the wrong message to employees but also runs the risk of scrutiny by third parties. Fair disciplinary procedures should apply to all alleged incidents of misconduct. These include investigation and disciplinary meetings (where necessary), the right for the employee to appeal the decision, and different individuals carrying out the different aspects of the process, i.e. one person carrying out the investigation, a second person carrying out the disciplinary and a third person dealing with any appeal.

If a business does not have enough members of management to carry out the different stages of the process, it may be that an outside party, such as a business owner from another business or an HR consultancy firm, carries out some of the process.

When disciplinary proceedings involve accusations of alleged historical misconduct that have only now come to light, additional issues must be taken into consideration, including: –

● Why have the allegations only come to light now?

This could simply be down to evidence only emerging now. The investigator should consider the time of the alleged incident(s) and whether the employee’s behaviour might not have merited disciplinary action at the time of the incident(s).

● Was the employee’s line manager aware of the alleged misconduct at the time it occurred?​

If the answer is yes then it is crucial that the investigation considers why disciplinary action was not undertaken earlier. If the misconduct was ignored or accepted by the line manager, there is the possibility that this could undermine any subsequent decision to dismiss or impose any other disciplinary action on the employee. If you have concerns that line managers are not performing to the correct duties, you should consider providing training on how to deal with misconduct in the workplace, including the importance of dealing with misconduct when it arises.

● How can we investigate something that happened in the past?

You must believe that the alleged misconduct actually took place, and be serious enough, for a dismissal to be considered fair. A proper investigation and disciplinary hearing must be carried out and evidence provided to support this belief. The circumstances of the alleged misconduct will determine what is reasonable. If witnesses are no longer available, you could base your decision on evidence if this evidence can be corroborated, sounds feasible and there appears to be no ulterior motive. If documents or other evidence are unavailable, then it may not be reasonable to rely on personal recollections of the contents of that evidence.

A recent case held at the Employment Tribunal has awarded the Claimant £25,000 compensation for unfair dismissal. Mr. Trice had worked for Southeastern Railway for eight years and, at the time of the incident which led to his dismissal, was working light duties at Paddock Wood Railway Station after suffering a broken ankle.

Mr Trice had found himself alone in the ticket office after his colleague had left the window open to go to the shop. A customer approached the window to buy a ticket and, although Mr Trice was not authorised to issue tickets, he went ahead and assisted the customer. Southeastern Railway started an investigation and during this period, Mr Trice admitted that he had acted incorrectly and was very apologetic.

Despite his contrition, Southeastern Railway dismissed him without notice. The colleague who had left the ticket window unattended to go to the shop was only giving a warning, despite also breaking the rules. The Employment Tribunal held that Mr Trice had been wrongly dismissed, saying: -​

“We agree that the Claimant’s actions constituted misconduct and warranted at least a warning but we do find it outside the reasonable range to dismiss. “The Claimant’s motive was to assist a customer, albeit misguided, and there was clear contrition and acceptance he should do differently in future.”

The tribunal went on to say that, instead of dismissing Mr Trice, Southeastern Railway should have provided further training.

This case highlights the fact that employers should consider both motive and whether or not a staff member is remorseful about any alleged misconduct.

We do not know the history of Mr Trice’s employment with Southeastern Railway and, therefore, cannot say if there had been any previous incidents which should have been investigated by Southeastern Railway but in which nothing was done.

It could be that Mr Trice’s conduct and disciplinary record with Southeastern Railway was, on paper, very good but if there were incidents that were not investigated and/or dealt with following correct procedures, then this could have influenced the decision to dismiss Mr Trice.

If you would like any further guidance on carrying out or assistance with conducting a proper disciplinary hearing, or for more information on management training, please feel free to contact us at info@orchardemploymentlaw.co.uk

“We agree that the Claimant’s actions constituted misconduct and warranted at least a warning but we do find it outside the reasonable range to dismiss. “The Claimant’s motive was to assist a customer, albeit misguided, and there was clear contrition and acceptance he should do differently in future.” The tribunal went on to say that, instead of dismissing Mr Trice, Southeastern Railway should have provided further training. We do not know the history of Mr Trice’s employment with Southeastern Railway and, therefore, cannot say if there had been any previous incidents which should have been investigated by Southeastern Railway but in which nothing was done. It could very well be that Mr Trice’s conduct and disciplinary record with Southeastern Railway was, on paper, very good but if there were incidents that were not investigated and/or dealt with following correct procedures, then this could have influenced the decision to dismiss Mr Trice. If you would like any further guidance on carrying out or assistance with conducting a proper disciplinary hearing, or for more information on management training, please feel free to contact us at info@orchardemploymentlaw.co.uk

If the answer is yes then it is crucial that the investigation considers why disciplinary action was not undertaken earlier. If the misconduct was ignored or accepted by the line manager, there is the possibility that this could undermine any subsequent decision to dismiss or impose any other disciplinary action on the employee. If you have concerns that line managers are not performing to the correct duties, you should consider providing training on how to deal with misconduct in the workplace, including the importance of dealing with misconduct when it arises. ● How can we investigate something that happened in the past? You must believe that the alleged misconduct actually took place, and be serious enough, for a dismissal to be considered fair. A proper investigation and disciplinary hearing must be carried out and evidence provided to support this belief. The circumstances of the alleged misconduct will determine what is reasonable. If witnesses are no longer available, you could base your decision on hearsay evidence if this evidence can be corroborated, sounds feasible and there appears to be no ulterior motive. If documents or other evidence are unavailable, then it may not be reasonable to rely on personal recollections of the contents of that evidence. A recent case held at the Employment Tribunal has awarded the Claimant £25,000 compensation for unfair dismissal. Tony Trice had worked for Southeastern Railway for eight years and, at the time of the incident which led to his dismissal, was working light duties at Paddock Wood Railway Station after suffering a broken ankle. Mr Trice had found himself alone in the ticket office after his colleague had left the window open to go to the shop. A customer approached the window to buy a ticket and, although Mr Trice was not authorised to issue tickets, he went ahead and assisted the customer. Southeastern Railway started an investigation and during this period, Mr Trice admitted that he had acted incorrectly and was very apologetic. Despite his contrition, Southeastern Railway dismissed him without notice. The colleague who had left the ticket window unattended to go to the shop was only giving a warning, despite also breaking the rules. The Employment Tribunal held that Mr Trice had been wrongly dismissed, saying: -​

The Pro’s and Con’s of using HR Software

Have you ever wondered what an Online HR Information System is? Or why it could
be beneficial to use one?
Well, put simply, a Human Resource Information System (HRIS) is an online
software solution for data entry, data tracking and data information for the Human
Resource department of a business, including payroll, management and accounting
functions. It is an incredibly useful tool for all processes that a business wants or
needs in order to track and from which to gather useful and purposeful data.
As your business grows, you may find that managing your business’s human
resources can become more and more complicated as the number of employees increases.
In a lot of businesses, the HR person or department often face a dilemma with managers
wanting to be able to improve the overall work environment for employees but also
needing the time to be able to deal with the paperwork and routine administrative
tasks that come with the job.
To address these routine tasks, many businesses will use a Human Resource
Information System (HRIS) to help improve productivity.

Benefits To The Employer

There are many different benefits to using an HRIS, for both employer and
employee. These include: –
Faster Integration
With many businesses growing rapidly, it is obvious that new employees are
required. But with new employees comes more employee integration into the
business, and this can mean that many, many hours are eaten up with paperwork
and processes and administrative tasks, simply to get that employee up and running.
By using an HRIS, the integration process can be a more efficient and consistent
one. Such a system provides easy access to training materials and handbooks for
new employees, and employee information can be stored in one convenient, easy-
to-access place.
Access To Information
How often do you or your HR team need to access employee information? We can
imagine that this is a fairly regular need and if you keep employee records in a well-
organised filing cabinet in the office then this won’t necessarily take up vast amounts
of time. However, if your files are kept in a storage room, or a highly disorganised
filing cabinet, you could be losing hours and hours of productivity. Your files are also
at a high risk of being lost or compromised.
An HRIS system can eliminate paper and turn all of your employee records into
easy-to-access online data, which can then be retrieved by anyone with the correct
authorisation.
Recurring Tasks
Many businesses will have various different tasks that recur on a regular basis and
which could be easily automated by the right HRIS.
For example, by automating your payroll system with your HRIS, you can take back
hours of work for your HR department.
Tasks such as holiday requests and employee time management can also be
approved or denied automatically, saving even more hours for your team.
Employee Tracking
Your business will always run more smoothly when you know who is working where
and who is unaccounted for.
An HRIS will allow your HR team to know exactly where your employees are in case
they are needed or if there is an emergency.

Benefits for the Employee

An HRIS id not only a benefit to your HR department. Your employees also
get added benefits and a more flexible work environment.
Quicker Access to Information
Employee self-service is on the rise within a lot of businesses at the moment. But, of
course, employees will always have questions about the terms and conditions of
their employment, salaries, holiday and other types leave, and many more things.
This means that your HR department will always be busy answering these questions
for each and every employee in your business.
The correct HRIS will provide a better employee self-service and, thus, higher
employee satisfaction.
Of course, with pros also come cons, and online Human Resource Information
Systems are no different.

Cons Of Using an HR Information System

High cost
Most people are pleasantly surprised to find that HRIS is not very costly. Although there is a cost attached it does save you and your business money in the long-
run.
Not all HRIS’ are perfect for all businesses
There are also many different systems available, all offering different solutions to
different problems and they may not always be the best fit for your business. This
can mean changing systems until you find the right one for your business
Therefore, if your business is lacking in sufficient upfront funds, this can prove to be
difficult to achieve.
Impersonal
Some businesses may see an HRIS as very impersonal and may decide to stick to
the traditional way of doing things.
Of course, this may be an issue and we would, therefore, suggest having regular
meetings or catch-ups to ensure that you keep the personal side of things going.
Perhaps hold a monthly staff meeting to find out if any employees have anything on
their minds, or if they have any suggestions to help the business move forward
further.
Wellbeing meetings are always a good idea as well. The purpose of these
meetings, held individually, is to ensure that each employee is happy and there are
not any issues that need to be dealt with.

Summary

The benefits of having a Human Resource Information System are vast for both your
HR team and the rest of your employees.
You need to make sure that you choose the right system for your business and once
you have done so, you will save both time and money, as well as provide a cutting
edge work environment that your entire team will benefit from. We are happy to say that both we and many of our clients are already using an online HRIS and we absolutely love the simplicity of it.
We sell a system provided by Breathe HR which is available as part of our packages
or stand-alone. If you would like any more information, contact us at
info@orchardemploymentlaw.co.uk

How hot is too for work? Keeping work going during Summer.

Summer is here and the sun is shining brightly. But it’s still business as usual for all of us and that means knowing how to cope in the hot weather when we still need to be working inside.

We have a few hints and tips for you for dealing with the working environment during the summer months: –

Office temperatures

There is no law for there to be a minimum or maximum working temperature in a workspace (i.e. if it is too cold or too hot to work).

However, during working hours, the temperature in all indoor workspaces must be reasonable. Guidance suggests a minimum of 16ºC (or 13ºC if employees are doing physical work).

There is no guidance for a maximum temperature limit within a workspace but employers must adhere to the laws contained in the Health and Safety at Work Act 1974, including: –

  • keeping the temperature at a comfortable level; and

  • providing clean and fresh air.

Ask your staff to talk to you if they feel the workspace temperature isn’t comfortable.

Dress code

We know that sometimes it’s important for your staff to wear a suit and tie or formal attire for business meetings. But when your staff are simply in the office, allow them to remove these and cool down a bit. Perhaps suggest to staff that they wear natural fibres and light colours to avoid attracting the heat so much.

Ice, ice and more ice

If you have a freezer, keep it stocked with ice cubes and ice lollies for your staff. If you don’t have one, perhaps think about investing in a small one specifically for this reason.

Fresh fruit

Although your staff may still want to munch on cakes and cookies, keep a selection of fruit in the fridge as well, in case they want something fresh and cool instead.

Drinks

Hydration is important for the mind as well as the body. A well-hydrated employee is likely to be more productive. Keep a selection of different fruit juices and squashes in the kitchen for a nice cool, refreshing drink for your staff.

Cool breeze

It might sound counter-productive but instead of having all the windows and doors open, keep them closed, pull the blinds or curtains and put the air conditioning or fan on. The closed windows and doors will prevent the hot air seeping in and the closed blinds or curtains will keep the direct sunlight out.

Outdoor meetings

Instead of holding your staff meetings in a stuffy, uncomfortable office, head into the garden or over to the park instead. Staff will enjoy sitting outside in the sun (or shade) and will appreciate a break from the office.

Picnics

Perhaps think about having a weekly or fortnightly staff picnic outside. This will help boost morale and get staff socialising and relaxing.

Summer hols

Remember that with the summer months also comes the summer holidays for parents. Juggling childcare with work can be a stressful time for parents. Think about allowing staff to work from home or do flexi hours so that they can still work but look after the kids at the same time.

Some businesses start the business day an hour earlier to allow for an earlier finish but be mindful of this if it is not in your contract.

Bring your child to work day(s)

With the above in mind, if you have staff members who have children aged between 8 and 16 years old, why not allow your staff to bring their children into work for a few days throughout the summer holidays? It’s a great way to give some educational, interactive and inspiring experiences to school-aged children, and also takes the pressure off their parents a bit as well.

Get the children involved in simple tasks and keep their minds occupied. But make sure that your insurance covers you when children are in the workplace.

Summer break

Unless it’s essential for business reasons, don’t reject staff holiday requests unless it’s absolutely necessary. Everyone needs a holiday and will always be more productive once they’ve had a break.

If you would like any further tips or guidance on dealing with the working environment during the summer months, drop us an email to info@orchardemploymentlaw.co.uk

Did you know we have over 30 blogs on our website? Visit http://www.orchardemploymentlaw.co.uk to read a few more.

Things To Look Out For In 2019

It’s hard to believe that we are already in 2019.

This year, there are a few different changes to legislation that will come into force and which you should be aware of in your business.

There will, of course, be more new laws and other legislative amendments throughout the year, but for now, here is a summary of the changes that we already know about.

 

National Living Wage Will Increase

From April, the UK National Living Wage will increase from £7.83 to £8.21 per hour. This will benefit around 2.4million workers and is an average £690 annual pay rise for full-time employees.

Other National Wage Rate changes are as follows: –

Age Group New Rate Current Rate

25 & Over £8.21 £7.83

21 to 24 £7.70 £7.38

18 to 20 £6.15 £5.90

Under 18 £4.35 £4.20

Apprentice £3.90 £3.70

 

Income Tax Thresholds Will Increase

The tax-free Personal Allowance will increase by another £650 in April to £12,500 – this is the amount you earn before you have to start paying income tax.

This means a basic rate taxpayer will pay £1,205 less tax in 2019-20 than in 2010-11.

And the amount that someone will have to earn before they start paying tax at the Higher Rate Threshold of 40% will increase from £46,350 to £50,000 in April, meaning that there is an additional £730 for people who earn above £50,000.

However, those earning more than £100,000 will not benefit as much, or even at all.

 

National Minimum Wage For Sleep-Ins

Last year, the Court of Appeal decided that people who work sleep-in shifts, i.e. nurses and care workers, are not entitled to the National Minimum Wage for any time that they spend sleeping and are ‘available for work’ but not ‘actually working’.

A request to appeal this decision was lodged with the Supreme Court and a decision is expected in 2019.

 

Pension Contributions

The minimum contributions for auto-enrolment pension schemes will increase for both employers and employees from April.

Current legislation means that employers must contribute a minimum of 2% of an employee’s pre-tax salary, with the employee contributing 3%.

Under the new legislation, employers and employees will now have to contribute a minimum of 3% and 5% respectively.

 

Itemised Payslips

From 6th April, a person’s legal right to receive a payslip will be extended so as to include workers as well as employees, such as contractors and freelancers.

Employers will also be required to include the total number of hours worked on payslips for employees whose wages vary depending on how much time they have worked. The payslip will also need to include the total number of hours worked for variable pay rates.

 

Sick Pay and Statutory Family Pay Rates To Increase

Statutory Family Pay Rates are likely to increase to £148.68 in April. This rate will apply to Maternity Pay, Adoption Pay, Paternity Pay, Shared Parental Pay and Maternity Allowance.

The weekly rate for Statutory Sick Pay is likely to increase to £94.25 from 6th April.

 

Parental Bereavement Leave and Pay

It was confirmed last year that the Government will be introducing a right for bereaved parents to take paid time off work.

Under the current proposals, parents who have suffered a bereavement will be able to take leave as a single two-week period, as two separate periods of one week each, or as a single week.

They will be entitled to take such leave within 56 weeks of their child’s death.

It is expected that this new legislation will come into effect in April 2020, but employers should start preparing for it this year.

Employers may also decide to introduce their own Bereavement Leave Policy if they do not already have one.

 

Further Changes To The Apprenticeship Levy To Support Employers

From April, larger businesses will be able to invest up to 25% of their Apprenticeship Levy into supporting apprentices in their own supply chain.

Further, some employers will only be required to pay half of what they currently pay for apprenticeship training – down from 10% to 5%. The Government will be paying the remaining 95%.

 

The Annual Investment Allowance Will Increase

The Annual Investment Allowance increased from £200,000 to £1million on 1st January 2019. This will end on 31st December 2020 and will help businesses to invest and grow.

In addition to this, from October 2018, businesses are now able to deduct 2% of the cost of any new non-residential structures and buildings from their profits before they pay tax.

 

Post-Brexit Immigration Rules

What are likely to possibly be the most significant changes to occur in 2019 are those relating to the employment of EU nationals, regardless of whether a deal on the UK’s exit from the EU is agreed or not.

Once the UK leaves the EU, free-movement will end. However, it is highly likely that this will be delayed pending legislation to repeal current laws. It will also take time to put into place the practical arrangements necessary to make these changes possible.

The Government has introduced a scheme in which EU workers who are already living in the UK will be able to apply for “settled status”, in order that they will be able to continue to live and work in the UK indefinitely.

However, employers should be aware that, moving forwards, the employment of EU nationals is highly likely to be subject to the same restrictions as those involving the employment of other foreign nationals. Employers will, therefore, need to adapt their recruitment processes as a result.

If you would like any further information on how these changes will affect you and your business, please email us at info@orchardemploymentlaw.co.uk We’d be happy to help.

Have you got staff who are on-call?

A recent case could have a big impact on employers who employ staff who work “on-call” and on “standby”.  Restaurants, Hotels, Care providers and Hospitals may have to revisit their policies following the case of Maztak v Nivelles Fire Service

Mr Matzak was a volunteer firefighter with the Nivelles Fire Service in Belgium, who was employed to work alongside professional, full-time firefighters to help with operations and standby services, which were arranged by rota at the beginning of each year.

All volunteer firefighters were paid an annual allowance for their standby work.

Under his contract of employment, Mr Matzak and other volunteer firefighters, as well as professional firefighters, were required to adhere to specific residence requirements, including: –

  1. To be domiciled or reside in a place so as not to exceed a maximum of eight minutes to reach the Nivelles fire station when traffic is running normally and complying with the Highway Code;
  2. During periods of standby duty, every member of the volunteer fire service serving at the Nivelles fire station must: –

 

  • Remain at all times within a distance of the fire station such that the period necessary to reach it when traffic is running normally does not exceed a maximum of eight minutes;
  • Be particularly vigilant so as to remain within range of various technical means used to call staff and to leave immediately, by the most appropriate means, when staff on standby duty are called.

Mr Matzak brought judicial proceedings against Nivelles Fire Service in December 2009, after his one-year probation period ended. The details of the proceedings were that his employer had refused to pay for his “stand-by” hours.

He also claimed that his employers had failed to pay acceptable compensation for his services as a volunteer firefighter, and, in particular, that his standby services should be classed as working time.

Although the Nivelles Labour Court upheld Mr Matzak’s case in March 2012, the Nivelles town appealed the ruling at the Brussels Higher Labour Court.

The Higher Labour Court partially upheld the appeal in September 2015, because under Belgium law “volunteers in the public fire services and the rescue zones as provided for in the law […] on civil security and volunteers in operational civil protection units do not fall under the definition of workers”.

After this ruling was made, the court was asked to determine the correct definitions of working time, in order to decide whether or not Mr Matzak’s standby services should be classed as working time or not.

All European countries must follow the Working Time Directive. The Working Time Directive provides minimum health and safety requirements for working time, including daily and weekly rest periods and annual leave.

“Working time” is referred to as “any period during which the worker is working, at the employer’s disposal and carrying out his activity or duties, in accordance with national laws and/or practice”. “Rest period” is referred to as “any period not classed as working time”.

The court was asked to consider whether or not volunteers should be classed as workers and therefore included in the regulations under the Working Time Directive.

They were also asked to consider whether or not Mr Matzak’s standby work should be considered as working time under the Directive, despite him being at home whilst on-call “given the constraints on the worker at the time preventing him from undertaking other activities”.

The court found that Mr Matzak was indeed a worker, even though he held a voluntary position.

The court also found that if the standby period was excluded from the concept of working time, this would have a serious impact on the objective of ensuring the health and safety of the workers by granting them satisfactory breaks and rest periods.

The ruling will mean that there is more than likely going to be a huge deviation in legislation because staff who work “on-call” and “standby shifts” at home will be counted as “working time”.

This will have wide-ranging implications upon any employers who need their employees to keep to specific criteria regarding their working hours but which restricts their movements during their free time. 

All employers who have staff working on-call need to carefully consider whether or not they need to place significant restrictions on their employees’ activities when they are on-call.

It may mean that employees are working more than 48 hours each week. It could also have pay implications.

If you would like any further information or advice on this matter, please call us on 01634 564 136 or email us at info@orchardemploymentlaw.co.uk