Employment Law News

Holiday Time - what is the entitlement? 

Now that Christmas and New Year is behind us Employees are starting to look at escaping from our dull weather to warmer climes, or indeed to more wintery climes, whereby they enjoy the ski season.

Employees, do you know what your holiday entitlement is and Employers, have you got it right because not to do so can be somewhat costly if matters end up in an Employment Tribunal.

The basics of holiday rights are that all workers have the rights to at least 5.6 weeks paid annual leave.  However the Employer can control some things about holiday; including when it should be taken and whether or not bank holidays are included within the entitlement.  For example, if an Employee is full time; that is they work five days a week, they would be entitled to a minimum of 5.6 weeks paid annual leave, which would equate to a maximum of 28 days.

It gets a little bit trickier for Employers when working out what part time workers are entitled to.  Part time workers are entitled to holiday pro rata.  So for example if a person worked four days a week, they would be entitled to 22.4 days maximum annual leave.

Employees start building up their holiday as soon as they commence employment with an Employer.  However, the Employer can control when holiday is taken.  Say for example your Employer closes for ten days over the Christmas period; Employees could be informed by their Employer that such time would need to be taken as holiday.  Minimum notice is required to be given by the Employer to the Employees for this.  Employees get paid their normal pay for holidays and if Employees finish their position with an Employer they are entitled to any holiday they have not taken.  Bank and public holidays can be included in Employees minimum entitlement.  Say for example Employers normally close on bank holidays they could insist these days are taken as holiday by the Employee.  There are eight permanent bank and public holidays in England and Wales; therefore an Employee’s Contract of Employment may read 20 days, not including bank holidays, which would give the requisite 28-day entitlement.

Remember you have to be an Employee to receive a holiday; self-employed workers are not entitled.

So happy summer holidays and happy skiing from all at Dawsons Law. Solicitors 20 Thetford Road Watton 01953 883535 enquiries@dawsons-law.co.uk

Employers: Redundancy

What Are Your Considerations Before Making Redundancies?

a) What are your Alternatives to Redundancy?

• Voluntary redundancies: If you want to keep an individual you must reserve the right to refuse a volunteer;
• Temporary lay-offs; and
• Short time working.

• Redundancy is a dismissal and so you should follow the correct dismissal procedures.
• Ensure your own procedure or at least the Statutory Procedure is followed (Note changes in April 2009)
• Give as much information as possible to individuals before the meetings, the right to be accompanied and the right of appeal.

• If there are between 20 and 99 proposed redundancies, within 90 days, an employer must start consulting with appropriate representatives at least 30 days before the first notice of dismissal is given.
• This minimum consultation period is extended to 90 days for 100 or more proposed redundancies, within the 90 day period.
• If your workforce is not unionised, you will need to organise elections of staff representatives before the consultation starts.

• Carefully consideration needs to be given regarding the selection pool and criteria.
• A distinct category of worker, or workers who work in a distinct area of the business, form the basis of a selection pool.
• Choosing the appropriate pool can be significant, e.g. if all employees in a particular pool are redundant then no selection process between them is required.
• Selection should ideally consist of a mix of objective and subjective criteria, which are transparent and applied consistently.

• Employees at risk of redundancy should generally be offered alternative vacancies before other employees who are not “at risk”.

• Do not forget about staff on maternity leave or who are off sick. They must be included in the consultation process and also have certain extra protection.

• If you are not sure ask!
• Seeking legal advice at an early stage can make the whole process smoother and give much needed peace of mind.

If you require any further information or advice, please call Salena Dawson and Co. on 01953 883535 for an appointment.

Employee’s Causing Death by Careless Driving – An Employer’s Liability

With a view to making our roads safer and with the intention of reducing the number of accidents on the road the Road Safety Act 2006 has created two new offences of causing death by careless (or inconsiderate) driving and causing death while driving unlawfully; this Act came into force on the 18th August 2008.   

Death by Careless Driving

Causing death by careless (or inconsiderate) driving is a lesser offence to causing death by dangerous driving and is punishable by a maximum penalty of 5 years imprisonment.  Previously, where death resulted from careless driving, the penalty at worst was a driving ban, penalty points and/or a fine.

The new offence of careless driving involves blameworthiness at a lower level.  Now a momentary lapse in concentration, which results in a fatality, could lead to a custodial sentence.  Each case will be judged on its own facts and circumstances.

Death while Driving Unlawfully 

Causing death while driving unlawfully, that is, while unlicensed, disqualified or uninsured, is punishable with up to two years imprisonment and/or a fine.

Employers’ Liability

Employers and fleet managers should be aware of these new offences, particularly death by careless driving, because Employers could now fall foul of the Corporate Manslaughter and Corporate Homicide Act 2007, where penalties include unlimited fine, remedial orders and publicity orders.

A remedial order will require an organisation to take steps to remedy any management failure that led to death.  Also, the court can impose an order publicising the fact the company has been convicted of the offence; providing details, such as the amount of any fine imposed and the terms of any remedial order made.

Practical steps to take in light of the new offences

Employers and fleet managers should consider the following action points to minimise the risk of offences being committed and business being disrupted as a result: -

• A creation, review or extension of an organisation's driving policy is particularly critical, given the Corporate Manslaughter and Corporate Homicide Act 2007.  This is relevant where, for example, an employee driving on company business is involved in a fatal road traffic accident while using a mobile phone, contrary to company driving policy, and, upon investigation, it is discovered that senior management knew that employees were ignoring the driving policy or simply failed to supervise and monitor employees to ensure compliance.  Each case will be judged upon its own facts and circumstances.
• For prevention and/or reducing the risk of an accident, give serious consideration to extending your health and safety policy and procedures to cover issues, such as use of mobile phones and other handheld devices while driving on company business.  Ensure drivers take appropriate rests on long journeys, have time to complete their journeys safely, are not unduly tired when undertaking any journey for work and check continuing competence by requiring employees to produce driving licences and notification to you of any driving convictions on an ongoing basis.
• If drivers use their own vehicles for work, monitor the road worthiness of their vehicle ask the employee to produce valid MOT certificates, valid insurance (including business use) and service documentation.  Increased monitoring may avoid potential comeback on an employer in the event of an accident and heighten awareness, so reducing the risk of an accident.
• All employers have a duty to assess, inform, train and supervise workers who drive vehicles as part of their jobs (in the same way that they do for workers who use any type of work equipment), regardless of the regularity of the driving.  All reasonable practicable measures should be taken to ensure that work related journeys are safe, members of staff are fit and competent to drive safely and the vehicles used are fit for purpose and in a safe condition.  This applies equally to frequent and infrequent drivers, such as employees travelling between sites.  For infrequent drivers, consider a classroom based workshop, covering key road safety issues, such as fatigue, speed management and vehicle checks as well as the organisation's driving policies.
• Consider having a set procedure immediate legal representation to be available for any drivers arrested for road traffic offences so that they can be fully represented at interview.  Those charged with death by careless driving are likely to want the case to go to trial in an attempt to avoid a custodial sentence, even if the chances of success are slim.  This is despite the reduced sentence that a guilty plea would attract.  It is imperative that they do not unwittingly compromise their position through unguarded comments.
• Have in place written guidelines for what the employee and employer must do following a fatal or serious road traffic accident.  For example, employees might be advised that in the event of such an incident they can choose not to agree to a police interview until they have spoken with their employer and they in turn have organised for immediate legal representation at the police station.
• Consider very carefully your motor insurance policy wording to ascertain exactly what legal costs cover is provided for criminal prosecutions and the extent to which such cover is discretionary.  Change your provider if necessary.
• It is important that no employee who drives for work is overlooked when it comes to risk assessment and training considerations, no matter how frequently they take to the road.

If you require any further information or advice, please call Salena Dawson and Co. on 01953 883535 for an appointment.