Published on August 12th, 2011 | by Dean Carr
Advice on HR issues after riots for retailers
Many employers will be faced with various staff related problems caused by the riots currently happening across the country. Closing workplaces means your employees may be out of work until you are back up and running, and they will undoubtedly have many questions for you about their position in all of this. In this special FAQ edition of the Bottom Line Express we aim to put you in the know about your legal position in terms of pay and time off.
Do I have to pay my employees if I cannot open my workplace?
If your employees are ready and willing to work, but you are not providing them with work because your workplace remains closed, you are effectively in a lay off situation. This does not mean that you are terminating their employment with you, it simply means that, for a temporary period, you are not offering them any work because there is no work to do.
Where you are in lay off situation, and cannot come to an agreement with your employees over an alternative (see below), they are entitled to be paid full pay for the entire lay off time unless there is a provision in their contract that allows you to withdraw full pay in this situation. This is known as a lay off or short time clause and basically reserves the right for you to put an employee on unpaid temporary lay off. If this clause is in operation, the employee will receive no pay apart from Statutory Guarantee Pay whilst they are laid off. Statutory Guarantee Pay is reserved for laid off employees who have at least one month’s service with you. It is currently £22.20 per day (or the employee’s normal daily pay if that is less than £22.20) and is only payable for a maximum of one working week per 3 month period. For example, if your employee works 2 days a week, they will only receive SGP for 2 days within the 3 month period. No other pay will be due.
If your employees turn up for work and you turn them way, this will result in a period of lay off until you can get them back to work again. The same applies if the employees work for most of the day and then you send them home early – maybe because you are closing on police advice or because you know travel home will be a problem – though in this case most employers will usually pay for the whole day anyway, even if there is a lay off clause in operation.
Is lay off my only option to get me through this time?
No. If possible, you could find the employees other work to do. Do you have any other locations from which work is done and is it reasonable to expect the employees to travel to the other location? If so, then the employee should be paid as normal, because they are still performing work. Maybe the employee could work from home if you can provide them with the equipment to do so. Again, normal payment should be made. However, if there is other suitable alternative work for the employee to do, and he unreasonably refuses to do that work so you treat him as laid off, there is no entitlement to SGP for that day.
You could ask the employees to just help out with the clean up operation, subject to health and safety requirements, in which case you are still providing them with work, albeit not their normal duties, so they should still be paid. You can’t force employees to do duties other than their normal ones though, unless you reserve the right in their contract.
You could agree with your employees that they take annual leave, or unpaid leave. If you can do that, you should pay them accordingly. You can also enforce annual leave on an employee by giving them twice the amount of notice as the period in question, e.g. if you want them to take 2 days’ annual leave, you must give them 4 days’ notice. This is only likely to be of use if you know you will be shut for a longer period of time.
I have managed to stay open but my employee was late for work because public transport was cancelled in the area. Do I have to pay them?
No, there is no legal requirement to pay an employee who has arrived late due to transport problems. However, you should check the contract of employee to make sure there is no contractual entitlement to this.
What if my employee phones to say he can’t get here because of transport disruption?
If the employee informs you of this, you could see if they want to take the day as annual leave or unpaid leave. If they don’t, then there is no requirement to pay them because they are not making themselves ready and available for work. You could also see if they want to make the time up later on.
If the employee does not let you know that they are not attending work, you are entitled to investigate this and if need be, invoke the company’s disciplinary procedure.
A school club that one of my employees uses has shut down due to being damaged and she wants time off to look after her child. Do I have to grant it?
This employee would be entitled to take time off for dependants – the law says that when childcare arrangements unexpectedly break down, employees are permitted to take time off to deal with the issue. This time off is unpaid, but again, check contracts to see if there is any provision for pay. In these circumstances, she may instead request annual leave and it is up to you whether you are willing to waive the notice that she is bound to give for annual leave under her contract or not.
This will be a testing time for both employers and employees. You should remain fair, flexible and transparent, keeping employees updated with what you are intending to do.
If you have any HR queries relating to the recent riots please call our 24 Hour Advice Service as early as possible on 0844 892 2772.