Hotel and Leisure Sector Employment Law Update
You will probably already have read in the press about the very recent European Court of Human Rights case of Eweida and others v United Kingdom (2013). The main finding was that an employee’s right to manifest their religious belief had been breached when they were prevented by their employer from wearing a cross at work due to the employer’s uniform policy. In light of this decision, employers should think very carefully about whether any revisions need to be made to their own uniform policies.
The following new rates will apply from 1 February 2013:
- The cap on a “week’s pay” (which is commonly used for calculating statutory redundancy payments and the basic award in an unfair dismissal claim) will increase from £430 to £450.
- The maximum compensatory award that can be granted by a Tribunal in a successful unfair dismissal claim will rise to £74,200 (from £72,300).
Currently, parents have the ability to take up to 13 weeks of unpaid leave to look after their child. From 8 March 2013, it is expected that this entitlement will increase to 18 weeks per child, due to a change in European employment rights.
Statutory sick pay
From 6 April 2013, statutory sick pay (SSP) will rise from £85.85 to £86.70 per week.
Pay for family leave
Statutory maternity pay, adoption pay and paternity pay will increase to £136.78 per week (from £135.45) with effect from 7 April 2012.
In October 2012, the Government announced proposals for a new type of “employee owner” arrangement. Essentially, employees would enter into a special type of contract where, in exchange for receiving shares in their employer (worth at least £2,000), they become excluded from the benefit of various employment protections, including the right to claim unfair dismissal, the right to receive statutory redundancy pay and the right to request flexible working.
It still remains to be seen exactly how this concept will be implemented in practice but, following a consultation in November, the Government seems to be moving forward with its proposals so watch this space for further details as it could be implemented as early as April 2013.
Collective redundancy consultation periods
As you may know, when an employer proposes large scale redundancies in which 100 or more employees may be dismissed, they are currently required to consult with representatives of those employees for at least 90 days before any dismissals take effect. From 6 April 2013, this period will be reduced to 45 days. Note that in situations where between 20 and 99 employees may be dismissed, there is a requirement to consult for a minimum of 30 days and this will remain unchanged.
FAQ… SNOW DAYS
QUESTION: My Head Waiter has called me to say that he cannot work his shift today because of the heavy snow. How do I handle this?
ANSWER: There are lots of reasons why an employee’s journey to work may be impossible or disrupted, for example, it could be because of adverse weather, public transport strikes or even volcanic ash. Ideally, employers should adopt a formal policy that can be applied in these situations, so that employees are clear about how any such absence from work will be dealt with and to ensure that all employees are treated in the same way.
One of the key issues for you will be whether your Head Waiter is entitled to be paid for the shift he is missing. This will depend on the specific contractual terms that you have in place with him. An analysis of his employment contract and any other employment documentation (for example, a staff handbook), as well as consideration as to what you have done in the past (as any previous practice could give rise to implied rights), would therefore be necessary before this question can be answered. However, in many situations like this, employees who cannot get to work will be considered as not being ready to work and therefore, most probably, will have no right to be paid for that day.
That said, even if there is no strict requirement to pay the employee, it may be sensible to show some sympathy for the individual’s predicament, particular where the reason for their absence is beyond their control and it is unusual. Withholding pay from an employee can damage morale in the workplace and employee relations. Even if you do not want to simply pay him for spending the day at home, you could consider an alternative arrangement, for example, you may want to offer your Head Waiter the chance to take the day off as part of his annual leave (assuming he has sufficient holiday entitlement left for this) or allow him to make up the lost hours at some other time. For some employees, they may even be able to carry out some of their duties from home or attend an alternative work place that they are able to get to.
If the Head Waiter needs time off because, say, his children’s nursery is closed due to the bad weather and he has no other childcare cover, he is likely to be able to legitimately exercise his right to take unpaid time off work to care for his dependents. If this is the case, he should be allowed the time off unpaid and should not suffer any detriment as a result.
Do you have an FAQ that you want covered in future editions of this newsletter? If so, please submit your question to firstname.lastname@example.org.
FOCUS ON… PROTECTING BUSINESS INTERESTS
When an employee leaves their employment, they can pose a risk to the employer’s ongoing business interests. Set out below are some ideas to implement at the onset of the employment relationship so that you have provisions in place to help minimise such risk:
A clear requirement not to use or disclose any confidential information can be invaluable in preserving your competitive business edge. It is therefore imperative for an employer to include an express provision in the employee’s contract of employment requiring them to refrain from using and disclosing any confidential information, both during their employment and following the termination of their employment. It is often sensible to include a list of the specific things you consider to be confidential (for example, room rates, the terms of business you enjoy with your suppliers, forthcoming promotional events and staff details) as well as a general “catch-all” provision to avoid a piece of valuable information falling through the net.
Depending on the employee’s particular role and their level of seniority, it may be reasonable for you to impose post-termination restrictions on them. This could perhaps be to prevent them, for a limited period of time, from soliciting and dealing with your customers, poaching your staff or possibly even joining a competitor. Such provisions need careful consideration to ensure they are appropriate and they also need to be drafted properly to ensure they are enforceable. Legal advice is therefore advisable to ensure that any such restrictions you put in place are reasonable. However, do always consider whether restrictive covenants are desirable as they can very often provide a useful tool to protect your business interests.
Return of company property
Such a provision might sound obvious but it certainly should not be overlooked. Remember to include specific provisions in your employee’s employment contract to require them to automatically deliver up all company property they have in their possession or under their control (which should include documents and copies) immediately upon the termination of their employment. If they have to return things like customer booking lists and pricing structures, they are, of course, then unable to make reference to it going forward.
Also, do not overlook electronic sources of information. Files relating to your business should be deleted from the employee’s home computer, phone and memory sticks. Additionally, think about the social media that they use. For example, your Marketing Manager may have a LinkedIn account, which is effectively a database of your business contacts. Therefore, where relevant, think about including contractual provisions which allow you the right to access and shut down such accounts when the employee leaves.
It may perhaps be appropriate for you to include a contractual provision which effectively gags your employees from making adverse and negative comments about your organisation and other members of your staff. You could also think about preventing them from making statements to the press, unless they have first obtained your express consent.
USEFUL INFO… NATIONAL MINIMUM WAGE RATES
Don’t get caught out paying the incorrect level of wages as the Department for Business, Innovation and Skills (“BIS”) has the power to name and shame employers who contravene the national minimum wage legislation. The first person publically named was a lady called Rita Patel who owned a hair and beauty salon in Leicester in January 2011. Make sure you do not suffer the same fate by remembering that the current national minimum wage rates are as follows:
|21 or over||£6.19|
|18 to 20||£4.98|
|16 and 17||£3.68|
This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 020 7404 0606 and ask for your usual Goodman Derrick contact.