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Employers' Guide to HR
Case Study - Staffing Issues
This article looks at some of the employment law obstacles an employer may face in dealing with different staffing issues.
Last Modified on: 2009/08/17 12:01
An employee fails to come to work
What is the reason for the failure to attend? If it appears genuine, i.e. due to a train strike, and there being no alternative form of transport available, then it would seem harsh not to pay the employee for the day in question.
However, as the employee is not able to work, then depending on any express term in the contract, it may be that the employer is contractually entitled not to pay employees who do not make it in. The employer will be in a stronger position in respect of hourly-paid staff than salaried staff (who may well be able to claim that docking of wages amounts to an unlawful deduction of wages).
If the employer is suspicious that employees may be using bad weather/transport problems as an excuse not to come to work, then this should be investigated as misconduct, and if relevant appropriate disciplinary action may be taken.
There is no work for staff to do
Staff can be sent home (or ‘laid off’), but they must be paid unless there are specific provisions allowing the employer not to do so.
If the contract allows the employer to lay-off staff without pay, they are still entitled to minimum ‘guarantee payments’ , for a period of up to five days in any three-month period.
Some employers may consider trying to introduce a lay-off clause into contracts, so as to entitle them
' Actions employers should take if: An employee fails to come to work What is the reason for the failure to attend? If it appears genuine, i.e. due to a train strike, and there being no alternative form of transport available, then it would seem harsh not to pay the employee for the day in question. However, as the employee is not able to work, then depending on any express term in the contract, it may be that the employer is contractually entitled not to pay employees who do not make it in. The employer will be in a stronger position in respect of hourly-paid staff than salaried staff (who may well be able to claim that docking of wages amounts to an unlawful deduction of wages). If the employer is suspicious that employees may be using bad weather/transport problems as an excuse not to come to work, then this should be investigated as misconduct, and if relevant appropriate disciplinary action may be taken. There is no work for staff to do Staff can be sent home (or ‘laid off’), but they must be paid unless there are specific provisions allowing the employer not to do so. If the contract allows the employer to lay-off staff without pay, they are still entitled to minimum ‘guarantee payments’ , for a period of up to five days in any three-month period. Some employers may consider trying to introduce a lay-off clause into contracts, so as to entitle them to send staff home with only guarantee pay. For this to be achieved, the employees will either have to agree to the change (on the basis that the only other option is the almost certain closure of the business), or they will have to dismissed and offered a new contract with the lay-off clause in it (which may result in unfair dismissal liability). If the situation persists and the business is unable to survive without downsizing, then there is likely to be a redundancy situation. Subject to following the correct procedures, including fair selection, the employer will then be able to dismiss employees for redundancy. The contract may allow the employer to nominate a number of days as holiday, in which case, if there is no work to do, or staff cannot make it in to work, it would be lawful to count some or all of the lost days as holiday. It is important to check the contract’s provisions on holiday carefully. For instance it may that employees are needed to work even if they have booked holiday, or over the Christmas Bank Holidays. The employer’s ability to do this will depend on the contract. If the contract is silent, then it will depend on custom and practice. Otherwise, to require an employee to take lost days as part of their contractual holiday entitlement may amount to a breach of contract. The company wants to introduce flexible working practices, e.g. have employees on call, require them to work week-ends, introduce new shift patterns etc This will depend on whether the contract allows the company to require staff to work flexibly. Many contracts require the employee to work ‘such hours as the needs of the business may dictate’. As long as changes to hours were introduced with reasonable warning and consultation, then this sort of clause would allow the employer a good deal of control. If the contract does not allow flexibility (e.g. ‘your hours will be 9.30 to 5.30 Monday to Friday’), then you will need the employees’ agreement to new working patterns. If employees refuse to co-operate then a decision may have to be taken to issue new contracts. This would involve dismissal and the offer of re-engagement on the new terms, and could lead to unfair dismissal claims against the employer. The risk of liability will be minimised by having pressing business reasons for the changes and consulting fully with staff. New shift patterns and working hours may mean that staff miss out on daily and weekly rest periods to which they are entitled under the Working Time Regulations. It may be that the derogations under the Regulations will permit this, if staff are given ‘compensatory rest’ at a later stage. If the new hours mean that workers’ average working hours are likely to exceed 48 hours per week, then consideration should be given to asking staff to sign ‘opt-out’ forms (although as the average is generally worked out over 17 weeks, it may be that they do not exceed the limit). Employment legislation for employers be aware of Employment Rights Act 1996 (ERA) — dismissing employees for failing to turn up to work could be unfair dismissal. As could dismissing them and offering them new terms and conditions, which the employer may need to do to introduce flexible working patterns to deal with the disruption in business. The ERA also contains provisions dealing with an employee’s right to guaranteed pay if the employer lays him/her off due to there being no work to do. The ERA, as amended by the recent Employment Relations Act 1999, allows employees to take time off to look after dependants. This could be relevant to staff whose children’s schools are closed unexpectedly due to the bad weather/transport problems. The deduction of wages without a worker’s consent is also unlawful under the ERA. Employers who dock the pay of staff who do not turn up to work during the period of bad weather/transport problems may fall foul of these provisions. The Working Time Regulations 1998 place restrictions on the maximum working week, and require workers to be allowed to take minimum periods of time off. These regulations may be breached if an employer requires staff to put in extra hours and work flexibly during the period of bad weather/transport problems. Contract of employment — this may be relevant as follows: It contains the basic pay/work bargain: if an employee is able and willing to work, then s/he must be paid, even if there is no work to do. The contract may contain a term allowing the employee to lay off staff in the event of there being no work; if not s/he is entitled to be paid as normal. It may contain, expressly or impliedly, rules allowing the employer to require staff to take the days they are unable to make it to work as holiday; It contains a number of other relevant implied terms: the obligation on employees to obey lawful and reasonable instructions of the employer; the duty of the employer to provide a safe working environment; It is unlawful unilaterally to impose new contractual terms on an employee, for instance new working hours or reduced pay; the employee’s agreement is needed; alternatively the contract has to be terminated on notice and the new terms offered (this may result in an unfair dismissal - see below). The cost of getting it wrong The main potential liabilities employers may face for action taken are as follows: Unfair dismissal: Employees dismissed for failing to come to work or because the employer wishes to offer new terms and conditions, may have claims for unfair dismissal. The maximum level of compensation is currently in excess of £50,000. Deductions from wages: claims for docked pay can be brought in an Employment Tribunal. The amount of the claim would be the amount of pay withheld by the employer. Failure to make a guarantee payment: an employee who is laid off and does not receive the guarantee payments referred to above may claim them in an Employment Tribunal. Breach of Working Time Regulations: employees who are denied daily/weekly rest or required to work in excess of maximum weekly working hours may take their employer to an Employment Tribunal. The tribunal may award such compensation as is ‘just and equitable’. The information contained in this case study is for general guidance only and represents our understanding of employment and associated law and employee relations issues at the date of modification. VizualHR cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on any individual matter.
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