Holiday Pay – Making Sure You Know Your Rights

holidayThe summer holidays are upon us and no doubt you are counting the days until you can dust off the sunglasses , stick your ‘out of office’ on and head off to sunnier climates for a well deserved break!

 

But before you go, are you aware of what your legal entitlement to holiday leave and pay is? Here we provide you with the answers to some questions you may have about holiday pay…

How much holiday pay am I entitled to?

Workers have a right by law to at least 5.6 weeks paid annual leave – this is basically 28 days paid holiday for a five day working week.   This right comes from the Working Time Regulations (NI) 1998.

The main things you should know about your rights to holiday leave are:
  • You should get a minimum of 5.6 weeks paid annual leave if you work full time.
  • If you are a part-time worker, you are entitled to the same level of holiday pro rata.
  • Your entitlement to holiday pay starts to build as soon as you start work.
  • Your employer can control when your holidays are taken.
  • If you leave your job, annual leave days that you have accrued but not taken will be paid.
  • Your employer can include bank and/or public holidays as part of the 5.6 weeks leave.
  • You are entitled to holiday leave throughout ordinary and additional maternity leave, paternity and adoption leave
Should commission be included in my holiday pay?

When you are off on holiday, you are entitled to be paid your normal salary.

However, there was a recent case (known as Z.J.R Lock v British Gas Trading Ltd and Others) where the European Court looked at whether holiday pay should only be based on normal salary or whether it should include commission also.

The Court decided that there was an entitlement to holiday pay based on both normal salary and commission as otherwise it would put people off taking holidays if they were to lose out on commission payments.

This case is still ongoing as the manner in which commission is calculated has yet to be finalised by the Court.

Should overtime be included in my holiday pay?

There was recently the case of Bear Scotland & Ors v Fulton & Ors which concerned whether or not overtime payments should be included in the calculation of holiday pay or not. It was held that guaranteed overtime payments were to be included in holiday pay.

Each case must be looked at on its own facts and therefore it would be necessary to seek legal advice if you had any query about how much holiday pay you are entitled to.
Happy Holidays!
If you require any further information this area, please feel free to contact Mary gavin at MGAVIN@FHANNA.CO.UK or leave your comments below.

LIFE BITE: How Private are your Private Emails in the Workplace?

apple-150579_1280Have you ever wondered whether your boss is legally permitted to read personal emails that you have sent to friends and family from your work email account?

Well, in light of a recent Court judgment it seems that they are.

In  the judgment of the case of Barbulescu v Romania which was handed down on 12th January 2016 by the The European Court of Human Rights, the Court held that there is no violation of your right to respect for private life and correspondence if your employer monitors personal emails that you send whilst at work .

What is expected of an employee and an employer is usually set out in the contract of employment.  However,  a contract does not have to be in writing and terms can be established in a manner of ways, either expressly, impliedly or through custom and practice.

It should not be that surprising that an implied term of a contract of employment is that when an employee is at work,  they should devote all of their time and attention to their work, not privately messaging friends or loved ones or using the internet for their own personal matters. Many employers have specific email and internet policies in place to counter such misuse.

In this particular case,  Mr Barbulescu was an engineer who used a Yahoo Messenger account, specifically set up for business purposes, to send and receive personal messages with his fiancée and his brother.  His employer, discovering this accidentally, dismissed him considering it to be in breach of his employment contract

Mr Barbulescu argued that the Romanian courts should have excluded all evidence of his personal correspondence on the grounds it infringed his Article 8 right that is the right to respect for private life and correspondence.   Mr Carbulescu’s employer’s internal regulations strictly prohibited employees from using the company’s computers and resources for personal purposes however, it was disputed whether the Mr Barbulescu had been given prior notice that his communications could have been monitored and their content accessed and eventually disclosed.

The issue before the ECJ was whether the right to respect for private life and correspondence is breached if employers monitor employees’ personal communications at work? The answer was a resounding no, subject to reasonableness/proportionality.

The ECJ held that although Article 8 was engaged,  the Romanian courts were entitled to look at that evidence in deciding whether Mr Barbulescu’s dismissal was fair.  The European Court was persuaded by the fact that the Romanian court judgement did not reveal the precise content of the personal messages, but only that they were personal messages.   Also, only the Yahoo Messenger account, which the parties agreed was set up for business purposes was accessed by his employer – not other documents and data stored on Mr Barbulescu’s computer.

The Court therefore found “that it is not unreasonable for an employer to want to verify that the employees are completing their professional tasks during working hours.”

MGavinThis Life Bite was provided by Mary Gavin, Associate Solicitor in the Employment Law Department  of Francis Hanna & Co Solicitors.  If you would like further informaiotn on this area of law, please contact Mary Gavin on mgavin@fhanna.co.uk or contact us at Life Law NI here.

The Office Christmas Party: Jingle Bells or Alarm Bells??

office-partyMary Gavin, Associate Solicitor in the Employment Law department of Francis Hanna & Co Solicitors has provided us with this guest blog on some steps employers should take to ensure an incident-free Christmas party _____________________________________________________________________________________

As the festive season fast approaches, many employers and employees look forward to enjoying a Christmas dinner with colleagues ……at the expense of the boss!

Most parties pass off without incident, (perhaps the odd blush) but others can have dramatic consequences which not only sour the party mood but can jeopardise an employee’s livelihood.
The relaxed atmosphere may prompt individuals to behave in a way which would never arise or be tolerated in the workplace. They may act inappropriately towards another colleague whether by unwanted advances or aggressive conduct. They may harass another colleague under the guise of “banter” or perhaps attend the workplace the following morning whilst still under the influence.

So, what can you do as an employer to prevent bad behaviour from your staff at the Christmas office party?

Prior to the office Christmas party, an employer should provide a clear policy on the standards of behaviour expected and what kinds of behaviour are unacceptable.  It may seem that reiterating that abusive behaviour will not be tolerated is stating the obvious however, the old adage of when “the drink’s in the wit’s out” couldn’t be more relevant at this time of year.  A reminder should be given in writing that instances of misconduct will not be tolerated at a work-related events and employees should be left in no doubt that such behaviour may lead to disciplinary action or potentially dismissal.

On the issue of alcohol, an employer should consider monitoring employees’ intake of alcohol not only if an individual appears to have had “one too many” but to ensure that the intended generosity is not used as an aggravating factor which the employee holds the employer responsible for.

No one wants to put a dampener on the festivities,  but employers should be aware that they can be held liable for the acts of their employees if an act is deemed to have been committed in the course of employment.   An office Christmas party is inextricably linked to employment so caution must be exercised.  Consideration should also be given to how individuals are getting home and appropriate advice or arrangements made.

The above is not an exhaustive guide as to the steps that can be taken to prevent employees from behaving inappropriately and it should be borne in mind that a potential Tribunal case will not only be brought against the perpetrator of the behaviour but also the employer.  Having a clear policy in place is evidence that reasonable steps were taken by an employer to prevent inappropriate behaviour from occurring.

Any employer is loath to turn a celebratory event which is ultimately an acknowledgement of employees’ hard work throughout the year into something where an employee could risk facing disciplinary sanctions!  But staff should be aware that they must conduct themselves at the same level of any work-related event. In short, just because it is a “party” it does not mean it is an exception to the usual policies and procedures that would apply in the workplace.

MGavinMary Gavin is an Associate with Francis Hanna & Co Solicitors. If you have any queries in relation to any employment law matter she can be contacted on 90234901 or at mgavin@fhanna.co.uk

LIFE BITE: Making False Declarations to Your Employer

apple-150579_1280A Scottish bus driver, Harry Clarke, who failed to disclose to his employer that he had suffered previous black outs before he blacked out at the wheel of a bin lorry in Glasgow caused the tragic deaths of 6 people with a further 15 others being injured.

The Fatal Accident Inquiry (FAI) was told by a previous employer of Mr Clarke’s that he had blacked out in 2010 yet there was no record of this on a DVLA assessment form in 2011.

In his job application for Glasgow City Council, Mr Clarke made no reference to his previous black out in 2010 or that he had been declared as suffering from vasovagal (faint).

Mr Clarke has accepted that he will not return to work as a driver however, he will in all likelihood now face disciplinary action by his employer for making a false declaration on his job application.

The importance of giving true and accurate information when being medically assessed for a job cannot be underestimated for an individual’s own safety, their colleagues and members of the public.

Making a false declaration on your job application is a significant breach of trust in the employment relationship.   It is vitally important to provide your employer with true and accurate information. Should your employer subsequently discover that a false declaration has been made by you, it will in all probability leave you open to disciplinary action which may result in your dismissal.

MGavinToday’s Life Bite was provided by Mary Gavin who is an Employment Law Solicitor at Francis Hanna & Co.    for further information on this topic or on unfair dismissal in general, please feel free to contact Mary by email on mgavin@fhanna.co.uk
For more information on unfair dismissal read our blog article

Redundancy: What An Employer Needs To Know

GDaly

Gerry Daly is the Employment Law Partner in Francis Hanna & Co Solicitors with almost 40 years experience in this field.
In his guest blog for Life Law NI, he has set out some of the factors that employers need to consider when dealing with possible redundancies within their business
As many of you already know and others are unfortunately going to find out in the current economic climate, downsizing your business and considering redundancies is a prospect you may have to face.
This is a grim prospect for you as a business owner but more particularly for your affected employees.
It is therefore vital that you as an employer handle this process fairly and in a manner that protects you from any potential unfair dismissal claims made by your employees.

What do I need to look at when considering redundancies?

When handling redundancies, you will be deemed to be acting fairly both morally and legally if you treat the matter with ‘RESPECT’, that is;-

R = Redundancy

You must be able to show that a genuine redundancy situation exists in your business

E = Employees

You should ensure that your employees are fully consulted about the redundancy situation.

S = Selection

You must use objective and verifiable criteria when you are considering which roles are to be made redundant

P = Procedure

You should follow the 3 step dismissal procedure:-

  1. Inform the employee in writing of the circumstances which are leading to you considering redundancies, invite them to a meeting to discuss the matter and warn them that a possible outcome is dismissal.
  2. Hold a meeting with the employee to discuss the proposed redundancies. An outcome of the meeting must be provided and your employee must be informed of their right of appeal.
  3. If your employee chooses to exercise the right of appeal, an appeal hearing must be held and a final decision provided
E = Employment

You should consider whether there are any alternative job roles that could be filled by those being made redundant in order to avoid the redundancy.

C = Calculation

You need to ensure that the correct redundancy payment is calculated

T = Termination

You must ensure that a letter is sent to the employee confirming the end of their employment

The underlying legal principle when considering redundancies is that of reasonableness – i.e. have you as an employer behaved reasonably in all of the circumstances towards your employee when handling their redundancy?

Before embarking on this process you should ask yourself whether you need independent legal advice.
My recommendation is that you should instruct an employment lawyer to handle the process. This will ensure that it is handled objectively and not contaminated with emotion which could end up costing you dearly.

Gerry Daly

Francis Hanna & Co Solicitors

If you wish to contact Gerry for more information on this area, please contact him at gdaly@fhanna.co.uk or alternatively let us have your comments below.