The clocks have gone back and the dark nights and cold weather has arrived, which must mean one thing: winter.
This season of the year can bring new challenges for an employer to face. We have listed below some issues which employers may be faced with this winter and some tips for employers on how to deal with them to ensure we are all working in a winter wonderland.
An employer could find themselves facing a higher sickness absence rate during the winter season. All employers should have a sickness absence policy within their staff handbook which ensures all staff are treated equally when it comes to sickness absence. There may be ‘trigger points’ contained within the policy. If the employee is, for example, absent a certain amount of times within a period of a few months, this may trigger disciplinary proceedings. Employees should be treated fairly and equally throughout all times of the year.
Travel to work
Sometimes during the winter season, particularly in areas prone to snow and ice such as Moray and the Highlands, roads can be closed or public service transport affected due to weather conditions. If the employee has to travel to get to work in the morning this can cause issues for employers if the employee is unable to get into work.
It is recommended employers have an adverse weather policy contained within their staff handbook to pre-empt this situation occurring. If there is already a policy in place which employees are aware of they will know what is required of them (such as reporting requirements) if they will be late into the office that day or if they will be unable to make it in at all.
Employers should also consider whether there is scope for working at home in situations where the employee is unable to travel into the office, and put in place these contingency plans to limit disruption to the business.
If you are employing staff who are regularly outside as part of their job, you should make sure you have provided your employees with appropriate footwear with grips to avoid slipping on snow and ice.
Depending on the nature of the business some employers may find the period running up to Christmas busier than other times of the year. If this is the case employers may want to take on seasonal workers, or they may want to offer their current employees overtime. In regards to overtime, employers should bear a few things in mind:
- What does your employee’s contract of employment state? If you want to offer your employee paid overtime there should be a clause for this in the contract of employment stating the rate of pay for this work. Do you want to offer them a normal rate of pay or do you want to offer them extra pay for working overtime as an incentive?
- Employers should bear in mind their obligations under the Working Time Regulations. An employee should not be working over 48 hours per week, unless they have signed an ‘opt-out’ agreement stating that they wish to work more than this.
- In terms of the Working Time Regulations employees are also entitled to a daily rest period of 11 consecutive hours rest in each 24 hour period and they are entitled to either an uninterrupted 24 hours without any work each week or an uninterrupted 48 hours without any work each fortnight. There are also special rules for specific worker groups such as young workers and night workers. If in doubt, get legal advice on this to ensure you are adhering to legal requirements.
At the other end of the scale, some employers may see a downturn in business during the winter season and may require to lay off some employees for a period of time. If that is the case, make sure you have provided for this in the employee’s contract of employment so that you have a contractual right to do this.
Short time working and layoffs occur when the employer provides the employee with some unpaid time off if there is a shortage of work, to avoid redundancy. Where an employee has been laid off (because there is no work for them) or given short time working (because there is limited work for them) they remain an employee, with the hope that the business will become busy again and they will be required back at work. They will not receive payment for this time off but they could be entitled to a guarantee payment (at a maximum of £26 per day for 5 days in any 3 month period). They are also entitled to request statutory redundancy payment if they are laid off for a longer period of time.
If a lay off and short time working clause is not agreed as a contractual term then the employee could possibly have a right to claim unlawful deduction of wages, unfair dismissal or breach of contract if they were laid off without a contractual right to do so. It is therefore important for employers to provide for this within the contract of employment if the company anticipates having to lay an employee off during a certain season.
As an employer reaches the end of one year and the beginning of the next this may also be a time to review the business and reflect on the past year as well as making plans for the following year. This can sometimes lead employers to make some redundancies. If this is the case, employers must bear in mind several factors including the following:
- Is there a genuine reason for the redundancy? The statutory definition of redundancy states that you will be allowed to dismiss an employee by reason of redundancy if the dismissal is wholly or mainly attributable to various reasons, including, “the fact that the requirements of that business for employees to carry out work of a particular kind, or for employees to carry out work of a particular kind in the place where the employee was employed by the employer, have ceased or diminished or are expected to cease or diminish.”
- Do you require to make more than 20 employees redundant? If so, there are more specific ‘collective redundancy’ requirements to follow when carrying out the process. If in doubt, seek legal advice on this.
- Have you selected a pool of employees at risk of redundancy?
- Have you followed a reasonable consultation process with those at risk of redundancy?
- Have you advised the employees of alternative positions within the company which they could apply for?
- Are you aware of your obligations to pay statutory redundancy pay for an employee with over 2 years’ service?
If the employer is considering making redundancies and is unsure of how to go about it, they should seek legal advice for guidance on this matter.
This year, Christmas Day (25 December 2017) falls on a Monday and Boxing Day (26 December 2017) falls on a Tuesday, which means these days will be Bank Holidays. There is no right to have either day away from work or taken as paid time off unless terms of the employment contract allow otherwise. Paid public holidays can be counted as part of statutory annual leave (which is 28 days per year in the UK for an employee working 5 days per week).
If you require your employees to take some holidays around the festive season if for example your business closes for a certain number of days, this should be included in your contracts of employment. Similarly, if you wish to restrict the amount of holidays being requested during the festive season if the company is busy, this can also be provided for in the contract of employment.
While there is no statutory right to have Christmas Day as a holiday, employers should be flexible in allowing employees to take leave to observe their own religious holidays as all employers have to comply with the religious discrimination provisions of the Equality Act 2010.
As the season for Christmas parties approaches, employers should ensure their employees are clearly advised as to the standard expected from all staff attending the Christmas party and the possible repercussions of inappropriate behaviour/conduct which should already be set out in the staff handbook. This should hopefully ensure that the Christmas party can be incident free and enjoyed by all!
How can we help?
If you are an employer or employee in the Moray area and you require assistance with any of the issues raised above, or any other employment related matter, feel free to get in touch.
Note: This article was first published on the Moray Employment Law website in November 2017.