Employment Bulletin - December 2005

This year, Santa has kept up to date with our monthly newsletters and has called us to say he will not be needing any advice this Christmas.

However, a couple of weeks ago a miserly looking chap shambled into the office, looking as though he was weighed down by invisible chains, and has asked us for some advice in respect of his counting house staff…

Minimum Wage

It had come to Ebenezer Scrooge’s attention that his clerk’s wife, Mrs Cratchit, had been moaning about the pay her husband, Bob, receives. Bob, being protective towards his boss (for reasons unknown), had not said anything himself. However, Ebenezer wanted to know where he stood should Bob bring a claim.

Ebenezer was paying Bob Cratchit 15 shillings a week. Unfortunately, we had to advise Ebenezer that by paying Bob 15 shillings he was not actually complying with his obligations under the National Minimum Wage Act 1998. Bob, who is over 22, should be being paid at least £5.05 an hour. This is because the minimum wage was increased from £4.85 to £5.05 on 1 October 2005. We also emphasised to Ebenezer that he needed to pay Bob in pounds rather than shillings.

However, in order for Bob to bring a claim, he would first have to raise a written grievance and wait 28 days. That said, it is Christmas so we advised Ebenezer to give Bob a pay rise and sort out his back pay in order for him to feed his family. This would also prevent a larger claim in respect of a “continuing” deduction from wages which could go back some time.

The wage rates came as something of a surprise to Ebenezer Scrooge who was wondering why his staff were looking on the thin side. We also advised Ebenezer that his staff aged 18 – 21 should now be receiving £4.25 and that 16 to 17 year olds should receive at least £3 per hour.

Time Off for Dependants

Another issue surrounding Bob had arisen. Bob’s son, Tiny Tim, is, unfortunately, very unwell. Ebenezer was concerned that Bob may want to take time off work to care for his son. Could he do this?

This can be tricky. Under the Employment Rights Act 1996 an employee may only take time off in limited circumstances, which includes time off to take action which is necessary “to make arrangements for the provision of care for a dependant who is ill or injured”. Further, the time taken off must be reasonable. The Employment Appeal Tribunal have clarified that this applies to unexpected or sudden events. Therefore, it is arguable as to whether pre-existing illnesses will be covered unless there is a sudden change in the condition. In addition, the time off is to “make arrangements” rather than provide the care. As such, more than 1 or 2 days is unlikely to be reasonable. Therefore, Bob would only be entitled to time off to arrange longer term care if there was a sudden change in Tiny Tim’s condition. Under the legislation, the time taken off is unpaid.

However, Bob Cratchit would be entitled to take parental leave. If Tiny Tim qualifies for disability living allowance, Bob will be able to take up to 18 weeks leave (up to Tiny Tim’s 18th birthday) due to Tiny Tim’s disability. However, Bob will only be able to take up to 4 weeks’ leave each year and the leave is unpaid.

As an alternative, Bob may wish to use some of his statutory 4 weeks holiday under the Working Time Regulations 1998 to take time off to be with Tiny Tim.

Holidays

The mention of holidays caused Ebenezer to raise another concern. Ebenezer Scrooge was not keen on any of his workers being paid whilst they were not at work. However, as a subscriber to our newsletter, he has picked up that workers are indeed entitled to 4 weeks holiday a year – PAID! Bah Humbug, indeed.

But what of public holidays? If Ebenezer found it in his heart to let Bob Cratchit take Christmas Day off, could he insist that he works on Boxing Day (and starts earlier to make up lost time)?

To an extent, this will depend on what is in Bob’s contract of employment. The reason for this is that there is no statutory right to take public holidays off work and such holidays, if they are taken off, count towards the minimum 4 weeks under the Working Time Regulations 1998. As such, unless Bob has a contractual right to public holidays in addition to statutory holidays, he will only be entitled to that day off if he uses part of his 4 week entitlement, subject to Ebenezer’s consent. Having had a look at Bob’s contract, Bob is only entitled to the minimum four weeks.

However, if Ebenezer has always allowed his workers to take public holidays off as extra holiday, a term could be implied into their contracts that they are entitled to take public holidays off. We didn’t think this was likely to be an issue, but checked this with Ebenezer anyway who satisfied us that his staff are never given more than the statutory minimum.

If, however, Bob wished to take Christmas day as a holiday in order to attend church for religious (rather than social) purposes, Ebenezer needed to be aware that if he refused to allow Bob to take holiday on Christmas day, Bob could be protected under the Employment Equality (Religion and Belief) Regulations 2003. Ebenezer would then have to show that his refusal to allow Bob the day off was due to genuine business needs which could not be met by a less discriminatory practice, such as someone else covering for Bob. Ebenezer only has one clerk so no one else would be able to cover Bob’s absence. However, it was unlikely that pressing business matters would arise on Christmas day.

Taking everything into account, Ebenezer decided to allow Bob to use part of his statutory entitlement to holidays to take Christmas day off.

Ebenezer left the office fully aware of his legal obligations but not particularly liking all of our advice…

However, he returned to the office a couple of days ago a completely different person. He may have had too many Christmas sherries as he kept mentioning ghosts, hooded phantoms and something about ignorance and want. However, despite these ramblings he was in good cheer and even brought us a cheque in respect of our last advice.

This time Ebenezer wanted advice on having a Christmas party. He told us about the parties his old boss, Mr Fezziwig, used to hold at Christmas and would like to do something similar for Bob and the other counting house staff. Did he need to be aware of anything?

Office Parties

Without wanting to dampen his festive spirit, whilst supporting the idea of a Christmas get together, we did have a few warnings for Ebenezer.

Christmas parties usually involve alcohol and often, probably a bit too much alcohol for some! Whilst this does not tend to cause too many problems, drunken behaviour can be violent or otherwise inappropriate – especially towards members of the opposite sex.

Ebenezer was concerned about this, particularly fighting, but wondered whether he would be able to discipline a staff member if his party was at a hired venue rather than the counting house (which is a bit dark and uninviting). We advised Ebenezer that if there was an incident of violence towards a colleague disciplinary action, up to and including dismissal, would usually be justified. In respect of other criminal acts, such as damage to property, Ebenezer would have to carefully consider whether the conduct in question made the employee unsuitable to carry out his or her role. This would involve considering the effect the behaviour might have on his business interests.

Other behaviour which should be a cause for concern is unwanted advances. Whilst this would be taking place outside the workplace, an office party is sufficiently connected to the employment relationship to afford employees protection under the various pieces of discrimination legislation, most notably, the Sex Discrimination Act 1975. Further, an employer can be held responsible for the actions of its employees. However, Ebenezer could protect himself from being found liable under the legislation if he took reasonable steps to prevent the behaviour from taking place. We, therefore, advised Ebenezer to have a harassment policy in place and to provide training on the policy to staff and managers. It is also important that the policy is followed and applied consistently. The disciplinary procedure should be invoked against an alleged offender if appropriate.

We also advised Ebenezer that he may want to place a limit on the tab behind the bar so that his staff don’t get free drinks all night. To our astonishment, Ebenezer did not like this idea and is even going to pay his staff a bonus and buy everyone a present!

This time Ebenezer left a happy man; although he did ask if it would be possible to sue his ex business partner, Jacob Marley, for psychiatric injury. Unfortunately, as Jacob passed away some time ago, this would be tricky…

So, from Ebenezer, Bob Cratchit, Tiny Tim (who has now recovered) and everyone at Crutes Law Firm, Merry Christmas and a Happy New Year.

God Bless Us, Everyone!

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