The Advocate General in the European Court has just held that drivers in Spain can count their journeys to and from home at the beginning and the end of the day as working time for the purposes of the Working Time Directive. Background In this case, the workers concerned did not have any place of work assigned to them. They are security engineers, and although they are notionally assigned to a particular office, they spend most of their time travelling around from assignment to assignment in their company vehicles. Their employer, Tyco Integrated Security SL, did not pay them for their journeys to and from their first and last assignments, treating this as unpaid ‘rest time’ instead.  The decision in this case turned on whether or not the time spent on these first and last journeys was time spent “at the disposal of the employer”. The Advocate General decided, given the hieratical nature of the relationship that they were at their employer’s disposal during these journeys. They should therefore be paid for this time as working time. Implications Although this case is due for a further hearing at the European Court itself, the position for mobile workers is now clear. The questions remains open whether or not this can be extended to any other journeys to a fixed place of work. The answer to this is likely to be no, but watch this space.

Our clients are often asking us what their obligations are when it comes to providing references for ex-employees, and here are our top tips. When providing references, employers owe various legal duties both to the new employer and to the ex-employee. New employers can claim for financial loss caused to them by relying on a reference that is too good or misses out something important. Ex-employees can claim compensation under a number of headings if they believe a reference about them is too poor, including discrimination, victimisation, defamation or negligence. Stay on the right side of the law by following our top tips for references. Generally, there is no obligation to give references, except where not doing so would amount to discrimination or victimisation. There may also be a duty to provide a reference in the financial services sector. If giving references, ensure that they are true, accurate and fair, and do not give a misleading impression overall. Stick to facts within your own knowledge of the employee. Don’t give an opinion on suitability for a job you don’t know about. If raising concerns in a reference, make sure these have been raised with the employee previously. Make sure that any criticisms of performance or attendance are not disability related. Be consistent in your approach to references. Put a policy about giving references in your staff handbook. This will help defend allegations of discrimination. View references received with a critical eye before acting on them; they may be discriminatory and make your company guilty itself. Do not provide references “to whom it may concern”. Address references to an individual and mark them “strictly confidential, for attention of addressee only”. Avoid oral references. If you do give them, make sure they are in the spirit of any written ones. Always add a clear legal disclaimer at the end of any written reference to prevent potential negligence claims from new employers. Consider implementing a clear policy of verifying dates of employment and job title in references only. Explain that it is your policy to do so, and stick to it.  If you would like further information, have an issue about references, or would like us to draft a reference policy for you, our experienced team of employment lawyers would be pleased to assist.

Working Time Regulations apply to all types of workers and sets limits to govern the hours most workers can work. The six key points the Working Time Regulations provide rights to are: To work a maximum of 48 hours per week, averaged over 17 weeks, unless they sign an ‘opt out’. Rest break of 20 minutes if they work for more than six hours in a day. Daily rest of 11 hours in each 24 hour period. Weekly rest of 24 hours in any 7 day period or 48 hours in any 14 day period. At least 28 days paid holiday (or pro rata equivalent for part-timers) in a holiday year, which can include bank holidays. Be aware that there are a number of exclusions that apply to particular sectors and types of work.

How much should you pay your staff when they are on holiday? Should you pay them their basic salary only? Or should you include commission, overtime or bonuses? And how should this be calculated? We explain the ins and outs of holiday pay in light of the recent court decisions making the news. The starting point The entitlement of workers to paid annual leave is set out in the Working Time Regulations 1998. These give workers a basic entitlement to 5.6 weeks’ holiday. This exceeds the European minimum of 4 weeks. For each week’s holiday, the WTR states, workers should be given a ‘week’s pay’. But what is a ‘week’s pay’? The WTR refers to the complicated methods of calculating a week’s pay set out in Employment Rights Act 1996 and deal with various situations. The two basic situations are where there are ‘normal’ working hours and where there are not. Where there are no normal working hours, an average should be taken of remuneration over a reference period of 12 working weeks. Where there are ‘normal’ hours, the position in the ERA 1996 is that usually only basic pay should be taken into account. This would rule out payments for commission, bonus, overtime etc. where these are not contractual. Challenge from Europe The basic position in UK law has, over several years now, been gradually challenged and eroded away by EU law. Employment tribunals and higher courts have been willing to read extra words into UK legislation where this is necessary to implement EU law. The first key departure from the basic position in UK law came in the case of Williams v. British Airways in 2010. This case related to flight allowances, which we deal with separately below, and established the principle that pilots (and therefore other workers) should be entitled to holiday pay in respect of: Remuneration intrinsically linked to the performance of employment duties. In other words, holiday pay must correspond to “normal remuneration”. Taking this principle, a number of cases have dealt with specific scenarios, and we take these in turn below. As it is European, some of the language is somewhat woolly, unfortunately. This means that the scenarios set out below provide general guidance only, and each particular situation should be looked at individually. So, what should be included in holiday pay, and what should not? Payments relating to professional or personal status These should be included (Williams v. British Airways). Ancillary costs (expenses) These do not need to be included where they are expenses incurred because of work (Williams v. British Airways). Allowances These should be included where they do not cover ancillary costs (e.g. expenses related to travel or subsistence). In the case of Williams v. British Airways , a travel allowance was made to pilots when they were actually flying. These allowances were payable because they were more in the nature of a bonus for performing certain tasks, and therefore intrinsically linked to them. Where these are more analogous to a travelling expense (as in the case of Wood v. Hertel) they should not be included. Time spent travelling to work Payment for time spent travelling should be included, so long as it is not an expense ancillary to travel such as train ticket or bus fare would be. (Bear v. Fulton – EAT) Commission The case of Lock v. British Gas is authority for the rule that commission should be included in holiday pay. The court held that the amount should be based on an average “over a reference period which is considered to be representative”. This leaves the actual method of calculation up in the air (see below). Overtime pay This should, as the law stands, generally be included. We need to sound a note of caution here, however, as some of the relevant cases are currently under appeal. The recent case of Bear v. Fulton means that voluntary overtime needs to be paid where this is offered at the discretion of the employer, but when it is offered it needs to be worked. The case of Wood v. Hertel confirms that compulsory overtime also needs to be taken into account. The situation remains unclear however when it comes to purely voluntary overtime i.e. overtime that need not be worked and need not be offered. Again, the situation is also unclear as to exactly how compensation for overtime should be calculated. Bonuses Applying the test that payments that are intrinsically linked to the performance of tasks under the contract should be included, it is probably the case that productivity, attendance or performance bonuses should be counted. Certainly, this was the case in Wood v. Hertel. But where does this leave the annual discretionary bonus usually offered by the vast number of employers? If this is a standard one-off payment simply relating to the time of year (e.g. Christmas) then it is probably not intrinsically linked to the performance of tasks. However, such bonuses are generally related to past performance, so there is a good chance that they should be included. We are awaiting confirmation of this point in future cases, however. Standby and emergency call-out payments These are intrinsically linked to the performance of tasks and therefore should probably be included (Bear v. Fulton – at tribunal level). ‘Acting up’ supplements These should be probably be included, because they are intrinsically linked to the performance of tasks (Bear v. Fulton – at tribunal level). How to calculate the amount of holiday pay owing Unfortunately, it is not clear whether the 12 working weeks reference period set out in the ERA 1996 applies. The reference period should be a representative normal period. 12 months was suggested by the Advocate General in Lock v. British Gas . On the other hand, some tribunals have taken the view that the original 12 week reference period is adequate. Tribunals, and employers, will therefore need to approach this question on a case by case basis. The rules apply to the European minimum 4 weeks’ leave only If the rules only apply to 4 out of the compulsory 5.6 weeks, which 4 weeks is it; the first 4 weeks or the last? This is highly relevant to the amounts to be paid, because, for instance, workers will want the weeks nearest their highest periods of commission to count. The employment tribunal in Wood v. Hertel took the view that it should be up to workers to choose, but this does not seem just, was only an employment tribunal decision and is very open to challenge. Back-pay So, how far back can claims for underpaid holiday go? Unfortunately we have no clear guidance on this point either. Arguably, claims could go back to the implementation of the WTR on 1 October 1998. This is because repeated under-payments of holiday pay can be seen as unlawful deductions from wages, and part of a “series of deductions” stretching all the way back to the implementation of the legislation. Another option would be to limit back-claims to 6 years, which is the normal limitation period for claims in England and Wales. The Employment Appeal Tribunal in Bear v. Fulton took a different approach, much more favourable to employers, saying that a “series of deductions” will come to an end if there is more than 3 months (the normal limitation period for tribunal claims) between holiday periods. This is open to challenge and will be subject of a further appeal, leaving this issue up in the air. What should employers do about back-pay? One way of dealing with the series of deductions point is to break the series of deductions by starting to make payments now. This may alert employees to the existence of the right, however, and precipitate back-claims. Where the series of deductions has been broken in this way, the 3 month time period for bringing a claim will certainly apply. What should employees do? Employees should bring their claims as soon as possible, so as to prevent their employers from bringing any series of deductions to an end. They should apply for their claim to be stayed pending the further appeals in Bear v. Fulton. These issues are extremely significant for employers and employees alike. If you would like to discuss them with an experienced employment law solicitor, please give us a call and we would be delighted to help.

As snow and ice continue to cause disruption across the UK, many organisations will be forced to close but what are employers’ rights and obligations in such circumstances? Do we have to pay employees who can’t get into work? An employer will only have the right to withhold pay if an employee’s absence is unauthorised. An employer therefore needs to consider carefully whether the terms of their contract make it clear that absence due to bad weather is not an authorised absence or whether it has been authorised in some other way (either expressly or impliedly) for example by a manager? While an obviously unauthorised absence may be grounds for disciplinary action, it must be remembered that employees have statutory protection against any unauthorised deduction being made from their wages. What about employees with childcare commitments? If schools and nurseries are shut and employees cannot make alternative childcare arrangements at short notice they may be able to rely on the statutory right to take unpaid time off for family emergencies to do with their dependants. However, this is intended to allow alternative arrangements to be made and is not a right to allow employees to stay away to care for their dependants indefinitely themselves. Employers also need to be aware that there could be potential sex discrimination issues if employees are treated less favourably than those who are absent for other reasons. For example, if an employer disciplined employees who were absent to look after their children, but not others. Exercising discretion Notwithstanding the strict legal position, an employer can decide pay employees for some or all of the days they cannot make it into work because of adverse weather conditions. Clearly, there may be good employment relations reasons for doing so. However, is it very important that all employees are treated consistently in order to avoid discrimination claims. Using holidays A more practical way around the issue of absence due to bad weather mayl be for an employer to consider alternatives, such as: agreeing with the employee that they will take the time off as paid holiday allowing the employee to make up time within a specified time scale requiring the employee to work from home It is arguable whether an employer has the right to compel the use of holiday entitlement Bad weather policy Good employment practice would be to make it clear to all employees what policy will be adopted regarding payment to non-attending employees and the use of holiday entitlement in the event of bad weather. Employers should consider introducing a bad weather policy which clearly sets out the employer’s position and explains how it will handle absence related to bad weather. Health and safety Employers have a duty of care concerning the health and safety of their employees, so they should avoid putting undue pressure on employees to attend work if this could result in them taking unnecessary risks. If the official advice is to stay at home unless the journey is essential, employers should not be asking individuals to get in regardless. There could be a potential liability for the employer if an employee suffered an injury after being pressurised into travelling by car or foot in dangerous conditions. Forcing employees into a situation where they feel they have no alternative but to travel to work or risk facing a deduction from pay and/or possible disciplinary action should be avoided. Employers should consider amending standard employment contracts to make it what circumstances will amount to unauthorised absence and giving them the power to deduct salary in such situations. Comment Employers need to plan for extreme weather situations, have robust procedures in place and make sure managers know how to operate these consistently. Ideally, employment contracts should make provision for workplace closure due to bad weather and a bad weather policy should be added to the staff handbook.  If you would like help drafting a bad weather policy or amending employment contracts, talk to one of our employment specialists .

The holy month of Ramadan officially started in the UK on 17 May 2018 and is predicted to end on 14 June, subject to confirmation of the official sighting of the new moon. We consider some practical considerations for Muslim employees and their employers during this time. Ramadan is the four week period during which Muslims fast daily, pray and give to charity each year. Its observance is a fundamental part of the Islamic faith which culminates with the festival of Eid al-Fitr. Energy levels, concentration and productivity of Muslim employees who are fasting are likely to be affected, particularly towards the end of the day, as employees will have consumed no food or water since dawn. Management need to be aware Managers should be made aware of the possible effects of fasting to ensure both that affected employees stay safe but also in relation to managing performance. Unduly penalising or criticising an employee who suffers as a result of fasting, could lead to complaints of religious discrimination or even constructive dismissal. What should employers do? Flexible working arrangements for Muslim employees during Ramadan should be considered, where possible. This need not mean allowing people to work different hours but could be very simple, such as arranging for lengthy or complex meetings or difficult tasks to be scheduled in the morning when the energy levels of employees observing Ramadan may be higher. Rest breaks Particular importance is placed on prayer during Ramadan so there may be more requests from Muslim employees to take breaks during the working day to rest or to pray. It might be helpful for employers to set aside a room for prayer during this time. Ultimately, business requirements will determine how much latitude an employer can grant but employers should think creatively about accommodating requests where at all possible. Note that under the Working Time Regulations 1998 only one 20 minute rest break must be provided if the working day is more than six hours (generally). Annual leave It is likely that there will be high demand for annual leave from Muslim employees to celebrate Eid al-Fitr and the question of whether to authorise such requests should be dealt with in accordance with an employer’s usual procedure. However, where there are a large number of Muslim employees who want to take the same time off it may not be possible to accommodate everyone due to the needs of the business. What is reasonable will depend on the size of the employer, its resources and the number of employees requesting leave at the same time. Where requests are made that are linked to time off for Ramadan/Eid al-Fitr, employers need to ensure that full consideration is given to the practicability of accommodating the request and that it is not dismissed out of hand simply because it is a busy period or others already have holiday booked. If, after consideration, an employer needs to refuse a request on genuine business grounds it should handle this sensitively and seek to reach a compromise with the individual where possible, for example, by putting the employee to the top of the list for next year. Education Employers can be vicariously liable for the discriminatory acts of their employees so it will be in their best interest to inform and educate all employees about what is involved for employees observing this holy time and the potential impact of Ramadan on the workplace.

The national minimum wage guarantees that every workers is paid a minimum amount for an hour’s work. National minimum wage laws first came into force twenty years ago. The legislation is enforced by HM Revenue & Customs (HMRC) and employers who get it wrong face big bills, not just in terms of back payments to workers but, also fines of up to £20,000 per worker affected and being “named and shamed” on HMRC’s website. Unfortunately for employers, national minimum wage legislation is notoriously complex and its easy to mistakenly fall foul of it. HMRC has ruthlessly pursued employers who have technically breached the law – usually through ignorance or misunderstanding of the rules rather than a desire to deliberately underpay workers. Big high street names such as Iceland, Sports Direct and Wagamama have been prosecuted. Although the government has said it will look to simplify the law in the future, for now the complicated rules remain. Some common areas where employers can breach the law and underpay workers are: failing to implement the annual increase in rates in time (this took effect on 1 April, this year) filing to move workers from one pay band to another when they have a birthday (for example, once a worker reaches 25 their hourly rate will go up from £7.70 to £8.21) failing to recognise that they have to pay for time which is regarded as working time such as time spent waiting to start or finish work (for example, extra time spent queuing to clock off or be searched) failing to recognise that some travelling time to and from different places of work must be paid at the NMW rate deducting money for a uniform or work equipment which might push income below the NMW deducting money as part of a salary sacrifice scheme which pushes income below the NMW (Iceland was fined running a Christmas club scheme where deductions were made straight from salary) failing to ensure that NMW is being paid for each “pay reference period” where pay is smoothed out through the year, for example, to deal with seasonal demand difficulties around “on-call” or sleeping in time and whether this counts as working time which must be paid for  Check your payslip From the 6 April, it will be much easier for workers to ensure that they are being paid correctly as employers will be required to give all workers (not just employees) an itemised pay statement. This must include the number of hours worked where pay varies as a consequence of hours worked.

All full-time workers in the UK are entitled to a statutory minimum of 28 days (5.6 weeks) paid annual leave each year. This leave entitlement usually includes the eight statutory annual bank holidays. Part-time workers are entitled to annual leave on a pro-rata basis. Many employers will operate a discretionary policy to enable staff to take time off – perhaps simply to help arrange or attend a funeral -when a family member dies. However, this is not legally enforceable and depends very much on the good will of the employer – they don’t have to do it. When they do, it is likely to be on a case by case basis, so the amount of time granted, whether it is paid in any way and indeed whether time will be given at all could be decided differently for different people. Time off for death of a dependant There is currently a statutory right for employees to take time off for dependants which specifically covers the situation where a dependant dies (section 57A of the Employment Rights Act 1996). There is no qualifying period of service for this right, meaning it applies to an employee from day one of employment. However, it is quite restrictive in its application. In particular: it only applies to an official employee (those working under a contract of employment) not to the wider category of workers or to agency workers, the police or members of the Armed Forces, it only grants the entitlement to a “reasonable amount” of time off during working hours, the time is unpaid, it does not require the employer to pay for the time taken, it only applies on the death of a “dependant”. What is considered “reasonable” will depend on the individual circumstances, but in practice the length of time off will be agreed mutually between the employer and their employee, but there is currently no universal guideline on this. Many employers have compassionate leave policies, but these are generally informal with companies tending to react to employees’ circumstances on an ad hoc basis. The right is to enable staff to carry out duties which are necessary in consequence of the death of a dependant. A dependant is defined as: the employee’s parent, spouse, civil partner or child, a person who lives in the same house as the employee (but is not a lodger, tenant or employee). As can be seen, this statutory right is limited in its application. It does not create a general entitlement to compassionate leave on the death of a family member, instead relying on the goodwill of an employer. Hence the actual time off an employee will receive, even if they are eligible, will be days rather than weeks and will often be unpaid, even in extreme circumstances. Changes to bereavement leave laws from 2020 Although the current legislation surrounding employee entitlement to bereavement leave is limited, with much being left to the discretion of the employer, upcoming changes to the law are set to change this. This planned amendment will directly relate to parents dealing with a child under the age of eighteen. Following the 2017 election, the government previously pledged to introduce a new entitlement for parental bereavement leave and pay and, in September 2018, the Parental Bereavement (Leave and Pay) Act 2018 passed into law. However, further regulations will now need to be made, setting out the finer details of the new right. The government made a manifesto commitment to introduce an entitlement for parental bereavement leave and the new law is expected to come into force in 2020. It is expected that the new law will give employed parents two weeks’ paid leave if they lose a child under eighteen or suffer a stillbirth from 24 weeks of pregnancy. As with existing bereavement laws, parents will be entitled to this paid leave irrespective of their length of service with their employer. How will bereavement leave be paid for? Currently, an employee taking bereavement leave following the death of a dependant is not entitled to full pay for the duration of their time off and will be paid at their employer’s discretion. The new law will make it a legal requirement for all parents who have lost a child to receive a minimum of two weeks paid leave. It is expected that the cost of this pay will be partially Government subsidised, depending on the employer and business size. Small employers will be able to recover all statutory parental bereavement pay from the government while larger employers will be able to reclaim almost all of it when the new right comes into force.

Unlike many other countries, there is not currently any specific legal right in the UK for workers to take time off when a family member dies – often referred to as bereavement leave. However, this is expected to change, in respect of the death of a child, in 2020. Many employers will operate a discretionary policy to enable staff to take time off – perhaps simply to help arrange or attend a funeral -when a family member dies. However, this is not legally enforceable and depends very much on the good will of the employer – they don’t have to do it. When they do, it is likely to be on a case by case basis, so the amount of time granted, whether it is paid in any way and indeed whether time will be given at all could be decided differently for different people. Time off for death of a dependant There is currently a statutory right for employees to take time off for dependants which specifically covers the situation where a dependant dies (section 57A of the Employment Rights Act 1996). There is no qualifying period of service for this right, meaning it applies to an employee from day one of employment. However, it is quite restrictive in its application. In particular: it only applies to an official employee (those working under a contract of employment) not to the wider category of workers or to agency workers, the police or members of the Armed Forces, it only grants the entitlement to a “reasonable amount” of time off during working hours, the time is unpaid, it does not require the employer to pay for the time taken, it only applies on the death of a “dependant”. What is considered “reasonable” will depend on the individual circumstances, but in practice the length of time off will be agreed mutually between the employer and their employee, but there is currently no universal guideline on this. Many employers have compassionate leave policies, but these are generally informal with companies tending to react to employees’ circumstances on an ad hoc basis. The right is to enable staff to carry out duties which are necessary in consequence of the death of a dependant. A dependant is defined as: the employee’s parent, spouse, civil partner or child, a person who lives in the same house as the employee (but is not a lodger, tenant or employee). As can be seen, this statutory right is limited in its application. It does not create a general entitlement to compassionate leave on the death of a family member, instead relying on the goodwill of an employer. Hence the actual time off an employee will receive, even if they are eligible, will be days rather than weeks and will often be unpaid, even in extreme circumstances. Changes to bereavement leave laws from 2020 Although the current legislation surrounding employee entitlement to bereavement leave is limited, with much being left to the discretion of the employer, upcoming changes to the law are set to change this. This planned amendment will directly relate to parents dealing with a child under the age of eighteen. Following the 2017 election, the government previously pledged to introduce a new entitlement for parental bereavement leave and pay and, in September 2018, the Parental Bereavement (Leave and Pay) Act 2018 passed into law. However, further regulations will now need to be made, setting out the finer details of the new right. The government made a manifesto commitment to introduce an entitlement for parental bereavement leave and the new law is expected to come into force in 2020. It is expected that the new law will give employed parents two weeks’ paid leave if they lose a child under eighteen or suffer a stillbirth from 24 weeks of pregnancy. As with existing bereavement laws, parents will be entitled to this paid leave irrespective of their length of service with their employer. How will bereavement leave be paid for? Currently, an employee taking bereavement leave following the death of a dependant is not entitled to full pay for the duration of their time off and will be paid at their employer’s discretion. The new law will make it a legal requirement for all parents who have lost a child to receive a minimum of two weeks paid leave.  It is expected that the cost of this pay will be partially Government subsidised, depending on the employer and business size. Small employers will be able to recover all statutory parental bereavement pay from the government while larger employers will be able to reclaim almost all of it when the new right comes into force.