We have had a few years of workplace absences, primarily of course down to Covid 19. But as appalling weather conditions appear to be about to hit the north and east of the UK, employers are asking exactly what they can or cannot do to make sure their organisations continue as normal. And, what they can and cannot insist their employees do in the face of adverse weather.

Until the start of the pandemic, the law was pretty clear that employers were only really responsible for their employees once they had turned up at work, prior to that in most cases, it was the employee’s responsibility to get there.

Certainly, with widespread infections and the threat of contagion on public transport, that debate has moved on a little since March 2020. However, we suspect that the principles for bad weather remain the same as before.

The good news for many employers is that they have been used to having a workforce who can work from home; bad weather does not change that. But, for those employees who continue to be required in the workplace, what is the situation?

The general principle has always been that employees are entitled to be paid when they turn up to work. So generally, if an employee cannot make it to work due to bad weather, their employer is not obliged to pay them. Traditionally, days lost to adverse weather can be deemed to be classed as Time Off In Lieu (known as TOIL) or unpaid leave by the employer.

Whether that is a policy that will endear you to your employees, however, remains a moot point. For these situations where employees cannot or will not get into work, there are a number of things you could do.

• Agree with your staff that they should take the days as holiday. This stops them having to struggle to work in really adverse weather conditions, and means it does not cost the organisation anything.
• Employees can agree to make up the hours once the weather has improved. Obviously, in the case of prolonged bad weather, this may become impracticable, but for a day or so it may be a sensible solution.
• You could reallocate work to those individuals who normally do not work from home to carry out some tasks that need doing, clearing up your database, or other administrative tasks that can be done from home.
• For organisations that have more than one location, you could close a particularly badly affected workplace and send them to other locations.
• Or, you could throw your hands in the air and decide that work is simply not possible today, we will reconvene tomorrow when conditions have improved.

Bad weather occurs from time to time, having a consistent policy to deal with bad weather conditions and informing your employees exactly what is expected of them is important. All of our clients have such policies, usually termed Disrupted Travel Policies, that they can turn to, as can their workforce to see what the general approach should be.

It will not give an answer to every individual situation but it should give a structure that then allows Managers to make informed, sensible judgments.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

As we start the Festive Season, and the final planning for your Christmas Party is taking place, it is worth reminding staff what is expected of them in terms of behaviour.

While things are not quite back to normal after the pandemic, and there may have to be some allowances made for the most vulnerable, Coronavirus is not an employer’s main concern now.

Even in a normal year, organisations have to lay down some ground rules, or else someone could misbehave, let themselves or the organisation down, and even lay themselves open to disciplinary action.

And, even if the pandemic feels as if it is over, you will need to do a proper risk assessment, identifying the problems, risks and the safest way to operate.

Everyone has to recognise these are still not quite normal times, and extra measures may be required:

• Anyone feeling ill should not attend
• Alcohol could be restricted or banned
• The unvaccinated could be excluded or separated

It is still work

Just because a Christmas party takes place outside of work hours, and often in rented premises, it does not mean that any misconduct falls outside of the employer’s control. In certain circumstances, even private social gatherings, if they are identifiable as members of the organisation, can fall under the employer’s rules, and the employer can even be held responsible for the (mis)conduct of their staff.

The general rule is that action can be taken against any off-duty misconduct if it is in some way damaging to the organisation’s business interests. or complaints are raised against the perceived inappropriate and/or unwelcome conduct of work colleagues (or their guests). Practically speaking, if an employer has organised a Christmas party for their employees, it is highly likely that the event will be classed as ‘work’, which means that at least a modicum of responsible behaviour will be required.

If Management are going to attend, however, it is even more legitimate to expect employees to be on their best behaviour. Such a situation means that any transgressions can be treated more harshly, simply because any inappropriate activity is likely to be more damaging to the organisation’s interests.

By far the most common misconduct issues at parties are alcohol-related. In many cases, senior Managers (and HR professionals) will simply have to accept it as highly likely that a proportion of the workforce will end up in various states of intoxication.  So, discipline employees if their drunken behaviour is damaging to business interests, whether as a result of harassment or violence to a co-worker or a third party, or even simply by harming their employer’s reputation.

If the decision is taken to dismiss an employee for drunken misconduct, it should be understood that Employment Tribunals will always evaluate the situation more critically if employers or Managers have contributed to that employee’s intoxication, either by providing them with alcohol themselves, or granting them the use of a free bar.

Aside from discriminatory exclusion, you may also need to deal with harassment issues at the party itself. It goes without saying that any entertainment that could amount to harassment by a third party (a racist comedian would be the obvious example), should not be booked.

But the danger is that the relaxed nature of an office party can also lead to actual occurrences of harassment, or even violence. When investigating complaints, drunkenness or high-spirits should never be considered a sufficient excuse for inappropriate behaviour, or as evidence that the victim of alleged harassment was a willing participant.

Such matters should always be evaluated with a sober mind in the cold light of day, to ensure that they are dealt with in a fair and reasonable manner, and in full compliance with the organisation’s internal policies and procedures.

After the party

Finally, even when the party is over, there are still some important issues to consider. In arranging the event and providing the alcohol, employers will be seen to shoulder some of the responsibility for the outcome.   Therefore, it may be prudent to arrange suitable transport in order to take home any revellers who might be the worse for wear, or just close to/over the legal driving limit. Responsible behaviour here could range from making sure everyone is aware of the telephone number of local taxi firms, up to going the whole hog and providing all staff members with transport on minibuses.

Of course, the fact that an intoxicated employee has managed to find their way home is no guarantee that they will turn up for work the next day.  As a result, employers should always clarify when staff will be expected to arrive in the office the following morning, particularly if the party is held on a weeknight. Any unauthorised absence can then be addressed using the Attendance and Sickness Absence policy.

In summary then, if an employer wants to have a stress-free Christmas party season, they might benefit from following the steps below:

• Discuss now whether staff are still keen to party, want to defer it or celebrate another way.
• Make sure you do a proper risk assessment.
• Prior to the event, make sure that everyone is aware of how they are expected to behave, and whether or not they are expected to come into work the next day.
• During the social event itself, it can help to have a responsible Manager present to monitor staff behaviour, and perhaps have an informal chat with any party-goers who might be taking things a bit far.
• At the end of the party, consider supplying or arranging transport, particularly if the organisation has been providing free alcohol.
• When it’s all over, ensure any complaints are investigated fairly and comprehensively in accordance with relevant procedures.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

As if organisations have not got enough to worry about. Already hit by rising costs, wage inflation and talent shortages, National Grid has raised the possibility of rolling power cuts across this winter.

While they emphasize that the likelihood of this happening is low, how well are you and your staff prepared should the worst happen?

The risks clearly vary between organisations. Does everybody work centrally? Is the organisation protected from power cuts because of what they do? Or do you have a lot of homeworkers, one or two of whom could be out of action for up to 3 hours?

Like most other risks, the sooner you start preparing the better. Obviously, the organisation needs to decide on business continuity in the event of a cut, but also how do they protect their vital data, stock and their workforce? Especially as this is most likely to happen when demand for power is at its highest, and the weather is likely to be at its coldest.

To start with, consider the following questions, whether you have answers to them

• Do you have a backup generator or emergency power supplies for your main places of work?
• Can you easily divert phones? Can you do so remotely if necessary?
• How do you ensure essential equipment keeps working?
• Are staff instructed to keep their mobiles and laptops fully charged?
• Do they need backup power packs for an emergency, or is, for example, working from the car a possibility?
• Do you need to pay particular attention to data backup during power cuts?
• Do staff who need to stay connected have enough data on their company mobile phones to allow them to access the Internet?
• Can they switch to an alternative location, such as a hotel, café or a temporary office?
• Do you need to source emergency lighting, even if it is only torches and battery powered desk lamps (we do not recommend candles!)?
• What is your plan for reopening after a power cut, especially if the power comes back on after everyone has gone home?

There are probably plenty of other questions you need to consider, but putting these plans into place now, and communicating them to your staff means there is less panic and more planning if the worst-case scenario happens.

And, if you need to order the batteries, torches or emergency power packs, it might be better to do so now before the panic buying starts.

Finally, consider how this will affect your staff themselves. What is your policy if you have to close a work location? If the power cut happens during the day, with sufficient light, do you have any alternative work that people can do that does not rely on power? Perhaps that stockroom has needed clearing for years, although all this is needed repainting or for a deep cleanse of the kitchen. There are probably always useful jobs that can be done if nothing else is possible.

The Government has suggested that vital infrastructure will be protected. Does that include schools and nurseries? If not, will parents and carers suddenly have to drop everything to look after their children? What will the organisation’s policy be in that situation?

This winter promises to be challenging enough for organisations, should you be unlucky enough to be hit by a power cut make sure you are well enough prepared.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

One of the most frequent requests we get is regarding holiday pay. How much annual leave does a worker get, how much should they be paid?

If employers find these calculations difficult, they are not alone. The picture in the UK is confusing, and especially so for those who work irregular patterns, or who receive variable amounts of pay.

General principles

The first, and overriding principle is that the law expects employees to take their annual leave. And to be rewarded sufficiently well so that they are not deterred from taking it because they lose out financially.

So, bear the following in mind:

• Annual leave allows workers to rest and relax away from work.
• Their holiday pay should reflect what they would have earned had they been working.
• Case law around holiday pay tries to ensure that this happens.
• If in doubt, recent case law has shown that the Courts are likely to favour the employee over the employer.
• The Government sets a minimum amount of annual leave, 5.6 weeks which equates to 28 days for someone that works 5 days a week. This includes Public/ Bank Holidays which people may or may not work according to their contract.
• Your contract may be more generous and if so, it should be adhered to.

Simple calculations first – Workers with fixed pay and hours

Many employees are workers with fixed hours. If they are also on fixed pay then the calculation should be very simple.

• They are entitled to a minimum of 28 days or 5.6 weeks of annual leave (whichever is the lower).
• Their holiday pay will be their normal daily or weekly pay rate.

For such employees, their pay remains the same every month, regardless of whether they take leave. They simply take their full leave every year.

If an employee is on a fixed shift premium, then their holiday pay should include that shift premium.

Part-time workers with fixed hours and fixed pay

Part-time workers with a fixed rota or fixed hours, will have a pro-rata entitlement according to their working hours.

If they work a regular three days a week on fixed hours, for instance, then their annual leave will be ⅗ of a full-time allowance (including ⅗ of their Public/Bank Holidays), but then every time they take a week’s holiday, that will only count as 3 days leave.

If they work 9 hours on a Monday and Friday, but 4 on a Wednesday, then it is simpler to calculate in hours – 22 hours a week x 5.6 = 123.2 hours leave, rounded* up to 124 hours. If they take leave on a Monday or Friday that will count as 9 hours, on a Wednesday as 4. A whole week is 22 hours.

* For practical and reasonable purposes, you are advised to round up to the nearest hour, half or whole day, you may never round down.

Their pay will be their normal rate of pay and their pay packet is unlikely to change.

Full or part-time workers on fixed hours, but variable pay

Many workers will be on commission, incentives and regular overtime, so their earnings will vary each pay interval. Employers used to think that such workers only needed to be paid basic pay while on leave.

We have always disagreed, as the Working Time Regulations 1998 has been clear on this matter, and a number of cases have borne this out. It is now firmly established that in such circumstances, workers need to be paid average holiday pay. To determine what constitutes e.g. regular overtime, if the employee does paid overtime most pay intervals, then that means it is regular and, therefore, average holiday pay is required.

The way to work this out:

• For workers who have been with you for more than a year, use the last 52 weeks (if monthly paid use 12 months) total pay, divide by 52 and then by the number of days or hours they work a week to arrive at a daily or hourly rate.
• For workers who have been with you for less than a year, use as many weeks as you can as a reference period in a similar way.
• Remember that this is a rolling 52-week period, so every time a worker wishes to take holiday this calculation must be done. The average holiday pay could be different each time.

Most regular payments can be included in this calculation, though Benefits in Kind and one off, annual or quarterly discretionary bonuses can be discounted as well.

The issue for employers is this is no longer simple to calculate. The rate will vary from pay period to pay period, on a monthly or weekly basis, to calculate holiday pay. Though many payroll systems will probably be adapted to be able to cope with it.

It is also worth reviewing how you approach groups of people who may do varying amounts of overtime or commission. Rather than having to constantly review who is doing regular overtime, it may be simpler to pay all of the group on an average basis.

Permanent workers on variable hours

This used to be simple, but since a recent case it has become a lot more complicated, and potentially more expensive. Note that the rules are different for casual and short-term contract workers, this only applies to those on permanent contracts.

Many such workers work in seasonal or educational roles, and used to be paid an extra 12.07% (5.6 weeks is 12.07% of a 46.4 week working year, in other words the calculation had deducted 5.6 weeks leave from the annual entitlement) to cover holiday when they were not working. This is no longer allowed as it tends to underestimate their leave pay.

Such workers should now get the full 5.6 weeks annual leave allowance, even if they only work part of the year. And the holiday pay is based on their pay for the weeks they work. Because of the nature of their work, such pay may be variable

So, the Government recommends that the calculation is done on:

• The last 52 weeks they worked, going back 104 weeks (2 years) if necessary.
• If they have worked less than that, use as many weeks as you can

Casual or contract workers

Any worker who works for you for any length of time starts to accrue annual leave from day one. Technically, somebody who works for you for one day will accrue a tiny amount of holiday.

However, given that 28 days is the minimum a full-time worker can expect for a year’s work, those working for as little as two weeks could have accrued just over one day’s holiday. Being very, very precise, 1.075 days.  Such rounding down with such a small decimal amount is probably acceptable, but generally always round up.

If they have not taken that leave during the time they work for you, then in their final pay packet they should be paid the accrued holiday. And that should be at the daily rate you have been paying them.

The same will apply to contract workers, you may well have taken them on for a three-month period.

Finally, agency workers are also entitled to holidays. At this point, it is worth checking with the agency exactly how they handle this, as those who work regularly for them could be provided for, and the rate to your organisation should reflect that.

“Rolled up” holiday pay

For casual workers, variable hours workers and contract workers, it used to be the practice that employers paid an extra amount to cover holidays. Typically, 12.07% (5.6 divided by the 46.4 weeks not on holiday). This was known as rolled up holiday pay.

For some time, this practice has been frowned on by the Courts, as it does not encourage the worker to take holidays, but in fact, to continue working as they earn at an enhanced rate.

And, since a recent court case, those in many sectors will be forced to finally abandon the practice as it also miscalculates the amount of pay such workers should receive. If you have traditionally paid such rolled up pay, then it is a practice that is open to legal challenge. And you may well find that such a challenge could prove very expensive, as employees could be missing out on 28 days every year.

One final point about holiday pay. In many circumstances where employers would think that their employees would not be entitled to holiday, it continues to accrue. The long-term sick, those who have been furloughed, those on family friendly leave or even in some cases, on unpaid leave e.g. sabbaticals, can continue to accrue holiday.

And, often this accrued holiday only really comes to light when the employee leaves your employment and the holiday entitlement is calculated.

As ever, these are complicated calculations. If you have any questions, then please contact us and we should be able to help. There are a number of publications on the Government’s website, detailed below, which may well be helpful. But they are not light reading.

Holiday entitlement: Holiday pay – GOV.UK

Guidance on calculating holiday pay for workers without fixed hours or pay – GOV.UK

Calculate holiday entitlement – GOV.UK

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Over the weekend, the Government announced a UK Public/Bank Holiday for next Monday, 19^th September to mark the Queen’s funeral.

The official announcement can be seen here:

Bank holiday announced for Her Majesty Queen Elizabeth II’s State Funeral on Monday 19 September – GOV.UK

The crucial point for many employers is that they do not have to give the time off, nor do they have to pay for it, but the announcement encourages them to do so.

“Does this Bank Holiday mean individuals can have the day off work?

This is a matter for discussion between individuals and their employer. There is no statutory entitlement to time off for Bank Holidays, but employers may include bank holidays as part of a worker’s leave entitlement.

The Government cannot interfere in existing contractual arrangements between employers and workers. However, we would expect that many workers will be able to take the day off on the Bank Holiday. We also expect employers to respond sensitively to requests from workers who wish to take the day of the funeral off work.”

It has been suggested that employers, especially those who have to be open next Monday, might like to give employees at work the opportunity to watch the funeral if they can. Just two things to think about:

• Events, including the initial procession and the final journey to Windsor, will start early in the morning and last a large proportion of the day, so be very clear about how much time you expect people to watch.
• Depending on the way it is viewed, ensure that you have a TV licence if it is necessary.

Finally, and this may well be relevant to many employees, schools will be closed according to the Government’s announcement. This will mean that many parents will either have to make alternative arrangements for childcare, or be at home to look after their children.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

Since the start of the summer, we have seen a significant increase, at times we might call it an avalanche, in staff issues.

Many of these, if not dealt with properly in the initial stages, are escalating into more serious issues fairly quickly. One aspect that is becoming evident is that employees are becoming more strident in asserting what they believe are their statutory and contractual rights, although their understanding is often wrong.  They are also becoming far less tolerant in how they believe they should be treated, especially when picked up for failing to reach expected work standards or conduct.  And poor mental health is regularly put forward as an explanation for why they have behaved the way they have, usually blaming the employer for failing to support them.

And a number of factors are bringing this to ahead:

• A general shortage of talent and an excess of jobs are making staff more confident that they can find alternative employment if they decide to leave
• After the pandemic, everybody feels under more stress and over the past couple of years cumulatively their mental health has suffered
• Inflation is making us all worry about our jobs and income, and we are becoming more strident in protecting both
• A generally better educated workforce knows its rights, and some know how to “play the game”
• As a society, we are less tolerant of discrimination, even if it is no less common than it used to be
• The advice given out by certain advisory bodies, including ACAS, is not small and medium sized employer friendly

We are seeing a rise in cases across the board, but in particular

• Claims of bullying, harassment and discrimination
• Prolonged or frequent short-term periods of absences for mental health
• Health and safety, and/or whistleblowing issues
• Working from home and flexible working requests
• The correct calculation for average holiday pay and who is entitled to this

For us at BackupHR, the level of relentless and varied client issues this year is really noticeable compared with prior to the Pandemic.

We are concerned for our clients going into the winter that such claims and disputes will only increase, especially as the pressure on the entire population will continue to crank up as energy price rises really hit home.

Very often we are called just after the employer has made the first move, and not just before. And sometimes this complicates the situation, especially if the first move has not been a good one.

Typical mistakes that we observe some clients making are:

• Ignoring a stream of minor slip-up in procedures until suddenly people (either Management or employees) get fed up and want formal action
• Moving instantly to dismiss, or to making a snap and hasty decision
• Failing to document repeated conversations to employees about their behaviour, leaving no important written audit trail to subsequent rely on and for the employee to deny ever happening
• Not acting even-handedly and not giving all sides the opportunity to have their say
• Not following their own Disciplinary/Dismissal, Grievance or Dignity at Work procedures to name but a few that are sitting within their Handbooks
• In a tight labour market, wrongly thinking that dismissal is the easiest way to rid themselves of the problem
• Not spending sufficient time investing in good induction procedures for new starters
• Shying away from open and honest conversations about mental health and how well, or not, people are coping with work, personal and financial pressures

These are difficult stressful times for organisations, employers and their employees. Many of us do not know what the next two years will hold, and are fearful that whatever we have built up, is now at the mercy of a faltering economy and a turbulent world.

But, however well or badly the next two years turn out, employers can help themselves and their employees to avoid unnecessary, escalating disputes at work.

• Keeping new policies procedures and handbooks up-to-date, and issued to your staff
• Making sure that your Managers fully understand and know how to use the handbook contents properly, efficiently and in a timely way
• Communicating clearly to your employees, not only where you want the business to go, but that you will not tolerate disruptive behaviour of any form
• Confronting inappropriate conduct early on, rather than letting it get out of control
• Following your own procedures to the letter, and involving us in the very early stages, rather than when it has already got out of hand
• Not acting in haste, remember there is no such thing as instant dismissal, procedures still have to be followed even in open and shut cases
• Recognising that we all handle difficult work and personal situations differently, so that even if a person cites poor mental health, they are not immediately disbelieved, although if this is new news then a healthy degree of scepticism may exist, unless there is proper medical evidence to support such a claim
• Being seen to act even-handedly and fairly for all staff
• Leading by example

We understand that everyone is under pressure, we are feeling it ourselves. The positive side is we are about to increase the size of our BackupHR team, and we will continue to do so as demand for our services rises.

Just bear with us in the meantime, please remember that yours may not be the only urgent client problem we are dealing with.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice. 

A recent Supreme Court decision on holiday pay has provoked much press, and considerable angst amongst employers, fearing that they could owe thousands in back pay.

Certainly, the decision in Harpur Trust v Brazel last week was an important one. After a 7-year legal battle, the Trust lost its argument that holiday pay should be pro-rata’d for a permanent worker (a peripatetic music teacher).

The good news for many employment experts is that it at least brings some certainty. The bad news for some employers is that it could leave them exposed to claims on back pay, as they have not been paying enough for holidays to employees that work term time only.

In reality, outside the education sector, not many workers will fall within the provisions of this decision. And, under normal circumstances, even if the Employment Tribunal subsequently finds against the employer, claims are generally limited to back pay for 2 years.

And, the decision does not affect part time workers, as it is widely accepted that the way most employers calculate their holiday pay is correct. That method is generally to pro-rata the time they work in either hours or days per week when calculating their holiday allowance. But, because they generally work regularly throughout the year, the calculation is the correct one.

What does the decision mean?

The worker in question was a music teacher who only worked during term time. To calculate her holiday pay, 12.07% was added to her pay at the end of each term.

How did they arrive at this particular figure? They simply calculated that the statutory 5.6 weeks holiday was 12.07% of a full 52 week working year. This has been a pretty standard calculation for many years.

She argued that though she only worked for 32 weeks a year, when work was available, the Working Time Regulations gave her 5.6 weeks holiday every year. The Supreme Court has agreed, while recognising the bizarre outcomes that this could cause – for example, in the highly unlikely situation of a worker on a permanent contract who only works one week a year could also be entitled to a full holiday allowance of 5.6 weeks!

They suggested that in reality, this was highly improbable. And we rather agree, especially as now employers should now look closely at contracts for such workers. They are known as part year workers, and such calculations will only apply if they are on permanent (what we prefer to call on-going) contracts.

Should employers do anything?

As this will only apply to a small fraction of workers, then the headlines that we have seen that this will have “Huge implications for HR” are rather too sensationalist.

We suspect that contracts in the education sector will rapidly adapt, as will pay levels to take into account these recent changes.

In most of the sectors, the effect will be minimal. But if you do employ part year workers because you supply the education sector or other seasonal sectors, then take good advice about your contract. There may be a nasty surprise lurking within there.

The guidance provided in this article is just that – guidance. Before taking any action, make sure that you know what you are doing, or call an expert for specific advice.