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Goodman Derrick LLP has acted for clients in the hotel and leisure industry for many years and the Employment Department recognises that this sector is heavily reliant on its staff. We know that you need to keep abreast of the legal matters that may arise and this newsletter seeks to help you do just that! 

 WHAT’S NEW? 

Tribunal awards

The following new rates will apply from 1 February 2012: 

• 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 £400 to £430. 
• The maximum compensatory award that can be granted by a Tribunal in a successful unfair dismissal claim will rise to £72,300 (from £68,400). 

Unfair dismissal eligibility 

The qualifying period for unfair dismissal claims (i.e. the length of time that an employee usually needs to be employed for before they are eligible to bring such a claim) will increase from one year to two years with effect from 1 April 2012. However, we await further details regarding this intended change, such as whether it will apply to new joiners only or to existing employees too. Watch this space! 

Statutory sick pay 

From 9 April 2012, statutory sick pay (SSP) will rise from £81.60 to £85.85 per week.

Pay for family leave 

Statutory maternity pay, adoption pay and paternity pay will increase to £135.45 per week (from £128.73) with effect from 9 April 2012. 

Bribery conviction 

Readers will recall that the Bribery Act 2010 came into force on 1 July 2011. The first person, a former Court Clerk, has now been prosecuted under this Act. He was charged with accepting a £500 bribe in exchange for omitting to record a traffic offence. He pleaded guilty and was sentenced in late 2011 to 3 years imprisonment. 

Employers should remember that they must have proper anti-bribery procedures and practices in place if they stand any chance of successfully relying on the statutory defence to bribery allegations. 

London 2012 Olympics

The long awaited London Olympic and Paralmpics Games will start in less than 7 months. Make sure you are ready! Will you need to put special arrangements in place for employees living in areas where travel disruption is expected? How will you deal with competing holiday requests from your employees? Should you allow your employees to watch the Games during their working hours? 

Consider tackling these issues and more in a specific policy so that everyone is clear about the workplace arrangements that will apply for the Games. Let us know if you need any help with this. 

FAQ… PAYMENT FOR NIGHT WORK

QUESTION: My hotel manager is sometimes required to spend the night at the hotel, although he can make use of one of the rooms and go to sleep. He says he should be paid for this time. Is he right?  

ANSWER: If the time counts as “work”, an employee is entitled to be paid for it, at the rate of at least the national minimum wage. However, whether the time spent at the employer’s premises overnight counts as “work” will depend on the particular circumstances.

In general, it is “work” where:

• the employee is actually working (for example, if the hotel manager is required to act as a night watchman); or 
•  the employee is required to be at or near to his work place and, in both cases, is obliged to keep himself available for work (although there can be some exceptions, for example, where the employee is based in his home or is permitted to sleep – see below). By way of example, if the hotel manager is expected to remain on site at all times to deal with guest queries as and when they arise, this is “work” as he is effectively on-call during the entire time. 

Where an employee is required to be at or near their work place overnight but is provided with suitable facilities for sleeping (as is the case for your hotel manager), different rules may apply. In this situation, time will usually only count as “work” when the employee is actually awake and working. Time during which the employee is allowed to use the facilities for sleeping will not usually be classified as “work”. Whilst this sounds relatively straight-forward, it is not always so clear-cut in practice. 

Compare the following two cases which demonstrate how fact-specific the assessment can be: 

• In Wray v JW Lees & Co (2011), Ms Wray, a temporary pub manager, was provided with free accommodation in the pub and was contractually required to sleep there.  She claimed that she was entitled to receive the minimum wage not only for her usual working hours, but also for the overnight periods she spent in the premises, including the time she spent asleep. The Employment Appeal Tribunal (EAT) rejected Ms Wray’s claim. The EAT concluded that she was not entitled to be paid in respect of the overnight periods spent at the pub because she was not required to do any work during that period. It found that she was there merely as a “minimum security measure or preventative measure” to deal with emergencies such as attempted break-ins, but even then, her role would be limited to calling the emergency services. This was held not to be “work” for the purposes of the national minimum wage legislation.
• In Anderson v Jarvis Hotels Plc (2006), Mr Anderson, a guest care manager, was required to sleep-over at the hotel, with his primary function being to cover emergencies such as fires, floods or accidents (which were very rare events). However, he had, on one occasion, been called out by the night porter to deal with rowdy guests and he had also been disciplined for leaving the hotel for half an hour during a sleep-over period. It is perhaps also notable that Mr Anderson’s own home was only 10 to 15 minutes walk away from the hotel. The EAT held that Mr Anderson was doing “work” and was therefore entitled to be paid for the sleep-over periods, even for the time he spent asleep. 

In the case of your hotel manager, an assessment of the particular facts would need to be made, for example, what his obligations are, what night time duties are expected of him, what his contract of employment states, etc. All these factors and more would be relevant in determining whether he would be deemed, in the eyes of the law, to be working and therefore entitled to be paid for this time. 

Please note that there are different rules regarding the time that qualifies as “work” for the purposes of the Working Time Regulations 1998, being the piece of legislation that governs a worker’s entitlement to rest breaks and rest periods. Note that the above cases deal only with the National Minimum Wage legislation. 

Do you have an FAQ that you want covered in future editions of this newsletter? If so, please submit your question to kdias@gdlaw.co.uk. 

FOCUS ON... SICK LEAVE AND HOLIDAYS 

• The minimum holiday entitlement for a worker is 5.6 weeks per year. For a full-time employee (being someone who works 5 days per week), this equates to 28 days per holiday year, inclusive of all public and bank holidays. There is a cap of 28 days holiday in any event. 
• If an employee’s sickness absence coincides with pre-booked holiday, the employee should be allowed to defer their annual leave to an alternative time (even if it means carrying forward their holiday entitlement into the next holiday year).
• During annual leave, an employee should receive their full salary in the usual way, whereas during a period of sick leave, they should receive sick pay. Many employers pay statutory sick pay (“SSP”) only, although some employers may have a more generous sick pay scheme in place. 
• SSP is currently £81.60 per week, although this is due to increase to £85.85 with effect from 9 April 2012. The first three days of sickness absence are unpaid under the SSP regime and SSP is payable for the first 28 weeks of sickness absence. 
• If an employee is absent from work on sick leave for an entire holiday year, their holiday entitlement still accrues. Currently there are conflicting case law decisions on whether the employee must request that their holiday roll forward into the next holiday or whether this happens automatically. 
• It is possible for an employee who is off work because of long-term sickness to take holiday during the period of sick leave. This may be advantageous for the employee as it often results in a higher rate of pay than their sick pay.

USEFUL INFO… NATIONAL MINIMUM WAGE RATES

National minimum wage rates are currently as follows:

This guide is for general information and interest only and should not be relied upon as providing specific legal advice.