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

Do you need to give an extra day as holiday this Easter?

You were probably as shocked as me to see that UK shops started selling Easter eggs on Boxing day and whilst I refused to buy Easter eggs before valentine’s day it makes sense for business to prepare ahead of time.

This year the Easter holiday is early with Good Friday being on 30th March. This may have a  direct impact on businesses whose holiday year runs from April to March in line with the tax year.

This is because the early arrival of Good Friday means that there are 9 bank holidays in this financial year instead of the usual 8. The impact will depend on the wording of the employment contract.

If an employment contract states that an employee is entitled to 20 days leave plus bank holidays they will have an extra days holiday this year. I am sure no staff will complain about that. However if your contracts state that employees are entitled to 28 days annual leave inclusive of bank holidays there will be no changes.

That being said employers may want to remember the following things about bank holidays.

 

  1. There is no legal right for employees to have bank holidays off.
  2. There is no legal right to be paid time and a half, double time or any extra pay for working on a bank holiday.
  3. Employers can impose annual leave on staff if they have a shut down period on bank holidays.

 

Of course these things are all subject to previous conduct and what is written in the Employment Contract.

 

If you would like help with Employment Contract, managing staff, HR or any Employment Law matters contact us via our website at www.orchardemploymentlaw.co.uk/contact

 

In the meantime, start stocking up on Chocolate and get ready to have a Happy Easter.

 

 

Winter Blues and Don’ts

5 Tools to take your staff to the end of the year.

 

This autumn and winter you can keep your staff productive your and business running by following these steps.

 

Sickness

Coughs and colds are an inevitability this time of year and this can mean that businesses experience higher absence levels than normal. November is the perfect time to promote good hygiene in the workplace. You can do this by providing telephone wipes, keyboard wipes, sanitsers and sweet smelling soaps. This will help to reduce germs spreading and keep staff healthier for longer.

Now is the perfect time to review your sickness policy and remind employees who, how and when they should contact work. If you would like some help reviewing your existing sickness policies and procedure please fill in the contact form at www.orchardemploymentlaw.co.uk

 

Adverse Weather

Fallen trees, ice, frost and snow can cause havoc on public transport and our UK roads. You may find that staff are late to work or unable to come to work because of the winter weather. There is no obligation to pay staff who are not able to attend work but you may want to put things in place to allow your staff to maintain pay and for your business to continue to function. Consider allowing staff to arrive at work later, work from home 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.

Black Friday

Black Friday sales in the UK are becoming increasingly popular. You may find that employees attention to work and productivity levels drop as they try to find the best online bargains.

Managers are advised to ensure they have an up to date internet rules and usage policy. This policy should also be shared with staff. Whether you take a more relaxed approach to the use of computer devices or a strict approach be sure to be consistent so that you are not accused of discrimination.

Annual leave reminders

If your holiday year runs from January to December now is the perfect time to remind staff about their unused holiday allowance. You do not have to allow staff to roll holiday over into the next year unless there are exceptional circumstances such as maternity or illness.

You are also able to refuse holiday if it is not a convenient time for the business or if there are too many staff off.

That being said it is good to give staff time to rest so you should be reasonable when in receipt of holiday requests.

Many employers are unaware that they can impose annual leave. So if the business has a down period or your staff have unused holidays you can simply give them a day off (with notice of course).

Christmas

Christmas do’s and bonuses are a lovely way to boost morale, bring the team together and enjoy the end of the year but there are a few things that employers should bear in mind.

  • Not everyone celebrates Christmas so be mindful not to exclude or discriminate against any staff members.
  • Bonus can become contractual if they are given consistently year after year. Always remind staff that the Christmas bonus is not intended to be contractual.
  • Sometimes staff behaviour at Christmas parties is unacceptable. Remind staff that they are still expected to comply with harassment and disciplinary policies whilst they are having fun.

 

For HR advice or support and help with Employment Law please contact us at www.orchardemploymentlaw.co.uk or email info@orchardemplolymentlaw.co.uk

 

Halloween in the workplace.

Yes, you guessed right. Employment Law even has an impact on Halloween in the workplace. Although, many people see it as harmless, employers should still set boundaries and expectations around this pagan festival.

Fancy dress?

One of the associated acts of Halloween is dressing up as ghosts and ghouls and this year there may even be a few clowns. Some workplaces have used dressing up as a motivating factor. In a similar vein to dress down Fridays or dressing up for Children in Need but managers should still set some expectations of what is and isn’t considered appropriate behaviour if they are going to facilitate a dressing up day.

In particular, employees should be reminded that Halloween is not an excuse to cause an offence.

A few years back Tesco and Asda withdrew two Halloween outfits from its shelves as they were named ‘Mental patient’ and ‘Psycho Ward’. The outfits were seen as offence to those with mental illness and so Tesco and Asda donated £25,000 to Time to Change. Outfits such as the above could give rise to a discrimination and harassment claim and as an employer you would be liable.

It isn’t sufficient enough to simply tell your staff not to wear outfits which might cause offence. Orchard Employment Law encourages employers to go the extra mile and to give employee’s scenarios and examples of acts or clothing which may be considered harassment or discriminatory.

You may want to tell your staff about tribunal cases surrounding fancy dress so that they see what consequences could arise from their actions.

In the case of Brown v Youngs Co Brewery  a black man won a claim of harassment after his employer had told him that he looked like a pimp  as he was wearing a promotional hat and in a case of X v Y a homosexual won a claim of harassment when his male colleagues had dressed up as women and spoke with a female voice.

Trick or Treat?

Another common action during the Halloween period is pranks. Resulting from the trick or treat custom. Whilst no manager wants to be the grim reaper of fun care should be taken to ensure that staff do not feel threatened or intimidated by the acts or behaviour around them.

That being said employers should be aware that they need to strike balance. It has been known for a pagan employee to bring a discrimination claim against their boss for not taking Halloween as seriously as other beliefs. In 2011 there were in excess of 50,000 people in the UK who identified themselves of pagan.

So if you are celebrating Halloween in your workplace this year, be sure not to be landed with an employment tribunal claim which turns out to be the most frightening trick of all.
To find out more about how Orchard Employment Law can help you with your staff visit www.orchardemploymentlaw.co.uk or email info@orchardemploymentlaw.co.uk