employment law
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Is all this extra leave really just humbug?
The Royal Wedding extra bank holiday has produced a predictable flurry of queries about who pays for the extra day. The answer to this lies in the contract of employment.
The wording of the specific employment contract has to be looked at. If paid holiday is expressed as “28 days per year inclusive of bank and public holidays”, then there is no right to an extra paid day for the Royal wedding. If paid annual leave is expressed as “20 days plus bank and public holidays”, then there may well be a right to the extra day, although some contracts define what is meant by “bank and public holidays” and list them out. In the latter case, the extra day would probably not be included and so would not be paid.
There is no general right to be on leave on a public holiday – that again depends on the wording of the contract of employment.
The whole idea of having paid annual leave is a relatively modern one. Public holidays were invented in the Victorian era , but it took a long time for paid annual leave to become the norm.
Workers were once required to work as many hours as their boss wanted them to. The battle ground was not annual leave, but working time.
Weekends were not leisure time for working people, and although they might have been given time off work to go to Church, this is a long way from the weekend as we understand it. Saturday was generally a working day and Sunday a church going day.
The traditional northern Wakes weeks were unpaid from the 1870s until the 20th century, being a period of a week (or two) when mills were shut by the owners for refits or maintenance. The August bank holiday was created in 1871, along with Easter Monday, Whit Monday and Boxing Day.
During the 1970s the old bank holidays were changed slightly, and New Year’s Day and May Day were added.
European law tends to treat annual leave as a matter of health and safety, and current minimum entitlements to annual leave are regulated under the Working Time Regulations in the UK. The entitlement for a five day a week worker is 28 days including bank and public holiday, although many employers give more than this via their contracts.
The progressive entitlement to annual leave has created an entire leisure industry of its own. When Dickens’s Ebenezer Scrooge complained about the introduction of the Boxing Day holiday, his business instincts were off base – he should have bought shares in the railway!
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk
You can follow Annabel on Twitter
Free Redundancy Download
It’s not easy finding out you are ‘at risk’ of redundancy. All those legal things that seemed to be somebody else’s problems suddenly are all about you – and you can’t remember half the things you ought to.
Download our free guide to redundancy. Based on our 30 years experience it can help you start working out what you can challenge, what you can’t and what money you might expect to get.
Simple just download it from:
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk. You can follow Annabel on twitter – http://twitter.com/AnnabelKaye
Employment law does not prevent performance management
If I had a penny for every time a manager told me that employment law prevented them from managing their staff, I would be so rich I wouldn’t need to work.
Most of the problems we deal with on our hotline stem from a failure to properly manage performance. Whether it is ‘bullying’ or problems in managing maternity leave, selection for redundancy, even half the discrimination problems we get – they all stem from a failure to:
• Design jobs people can succeed in
• Recruit people with the right skills
• Set achievable goals within that job
• Adequately resource for success
• Monitor performance and feedback
• Adjust course where needed
When we talk to employees within teams we find them saying – management won’t touch x person because they are protected by discrimination law, management don’t tackle poor performance early enough or clearly enough.
The managers say employment law stops them doing this.
Employment law is not that tricky if you know what you are doing. Some organisations are cursed with the ‘employee from hell’ but most are not. You don’t have to wait until you can’t stand it any more and then try to shoe horn ‘employment law’ into a last minute dash towards dismissal (with the replacement waiting in the wings). You can integrate the basics into a simple performance management system.
If you are struggling with manage your team (or an individual) and thinking “if employment law didn’t exist I’d…………….” now is the perfect time to start working on that problem.
Employment law is not going to stop you managing poor performance in your business if you know what you are doing. Join us on this FREE KoffeeKlatch seminar to talk about how to make it all work for you.
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk. You can follow Annabel on twitter – http://twitter.com/AnnabelKaye
Maternity Myths
There are so many stories about maternity at work, so many high profile tribunal cases and so much regulation, it is hardly surprising people get in a muddle about what rights and obligations really exist. Here are some of our favourites.
1. Small employers are out of pocket and can’t afford to pay statutory maternity pay. Small employers get a rebate of SMP plus a handling charge and they can get it all paid in advance of paying out SMP. Larger employers get a rebate but it is not 100%! No UK employer is expected to fully fund statutory maternity pay at either the higher or lower rate.
2. There is an obligation to maintain full pay for the entire one year maternity period. Additional payments beyond statutory entitlement are something employers can contract to, but there is no overall legal requirement for this. Such payments do not qualify for any form of government funding or rebate.
3. Once women are pregnant we can’t make them do any work. Healthy pregnant women can usually be expected to work normally. If there are no risks to mother or child and the pregnancy is normal there is no reason to feel that pregnant women cannot make a real contribution in the workplace in line with what they did before. Some women sail through pregnancy and others are constantly tired and sick – not everyone reacts the same.
4. Women are entitled to unlimited paid time off during pregnancy. Women are entitled to paid time off for ante-natal visits, but GPs offer commuter surgeries, shared care and arrangements can be made for medical care to take place out of hours. If the woman is that ‘key’ to your operation you might want to consider funding private ante-natal care to avoid stress and deadline problems.
5. Women can take as much sick leave as they want during pregnancy. A woman who is pregnant and absent for some other non pregnancy related reason – eg a broken leg, is in the same position as any other employee and has no special additional rights. Dismissing a woman for pregnancy related sickness would usually be an expensive mistake, but you are not obliged to pay beyond your normal contractual arrangements if a woman is sick during her pregnancy.
6. The maternity locum is so much better than the absent woman and there is nothing you can do to keep the locum. It happens all the time that the temporary replacement is better than the original incumbent. This is a sure sign your performance management systems are not working very well, since if there were performance issues with the original woman they should have been documented and dealt with long before pregnancy or maternity leave became an issue! It is tough to start from here, but with some lateral thinking and goodwill all around it is possible to address this problem successfully.
7. The woman wants to return to a flexible working arrangement that makes life very difficult for others and we have no choice but to agree. Now that so many people have flexible working rights it may be very difficult to staff a workplace outside school hours, during school holidays or on Fridays. You do have the right to reject or counter propose when faced with flexible working requests and it is reasonable to take into account what can work. However, you should not just say ‘no’ but consider the request see if it can be made to work and counter propose what might work if there is another way.
8. Pregnancy is a ‘self-inflicted’ injury and should not really have any special consideration in the workplace. Self inflicted? Most unusual! Whatever anyone might think, the EU has determined that pregnant women should not suffer discrimination. Ignoring laws you don’t agree with or don’t understand can be very expensive
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk. You can follow Annabel on twitter – http://twitter.com/AnnabelKaye Our specialist site for pregnancy and parenthood at work can be found on www.balancingthebump.com
Can an employer make an employee take a day as holiday?
Many employers have been asking staff to take a day’s holiday if they could not come in because of the snow. There have been a lot of misleading headlines about holiday and absence. Here are some useful facts.
1) An employer cannot make someone go to work
2) There is no general legal entitlement to be paid for days not worked and many contracts/staff handbooks specifically say employees won’t be paid for absence except under the sickness, holiday or parental leave scheme
3) Employers who keep the workplace open may ask absent employees to chose to take holiday IF they want to be paid (as opposed to unpaid leave is there is no underlying entitlement to be paid in any event)
4) There is a difference between absence and pay – not all absences trigger a right to be paid
5) Under the Working Time Regulations, employers may specify in advance that annual leave must be taken on days they chose. To do this they must specify date(s) in advance and give relevant notice – twice as many days in advance (of the first day of leave) as the number of days to be taken. So even one day’s leave requires two (full) days notice. This device does not usually cover shut downs needed at short notice
6) Some employers have their own rules for specifying leave dates that may over ride these rules
7) Parents taking time off to look after their children have no general right to be paid
8) Some employers are offering additional hours to catch up on the backlog and to help employees catch up on pay
9) Many employers are paying people who attended work on the basis of a full day even if they arrived late or went early (though not all are obliged to do so)
10) The 48 hour working maximum under working time regulations is an average, not an absolute ceiling, so workers can work longer hours to get things back to normal
Annabel Kaye is Managing Director of Irenicon Ltd, a specialist employment law consultancy. Tel: 08452 303050 Fax: 08452 303060 Website : www.irenicon.co.uk. You can follow Annabel on twitter – http://twitter.com/AnnabelKaye
D5 Creation