Employment Law



		Employment Law
		Over recent years it seems as if employment law has changed every month and the pace of change is, if anything, increasing. There are new Acts, new regulations, and more and more directives from Europe. It is very difficult for an employer to keep up with all this legislation, yet the penalties for getting it wrong are rising and may well rise further in future. There are many legal pitfalls whenever anything to do with employment is considered but careful planning in advance can avoid these traps. What we can do for you Whether you are an employer or an employee, our experienced employment lawyers can offer you clear, practical and cost-effective advice. We advise clients in all industry sectors from retailers to construction companies, charities to professional firms. Some of the issues we can assist you with include:- Framing contracts of employment Disciplinary and grievance procedures Transfers of undertakings Termination of employment Severance packages Industrial relations Contacts Morinne Macdonald (Director) mm@macdonaldhenderson.co.uk Tel: 0141 248 4957 Related Articles The Employment Contract. Written Statement of Terms. Itemised Pay Statement Holidays Working Time Minimum Wage Unauthorised deductions Retail employment Equal pay Part time employees Continuity of Employment Choice of Trading Structure Service Contracts Termination of Employment Notice Unjustifiable Termination - unfair dismissal Redundancy Employment Tribunal Settling Employment Disputes Discrimination The Disability Discrimination Act 1985 Trade Unions Statutory Sick Pay Maternity Rights Duties of the Employer towards his Employees Transfer of Undertaking Night Workers Restrictive Covenants The Employment Contract The first matter to look at is how the relationship of "employer" and "employee" is legally created. As soon as any employee commences employment a Contract of Employment is deemed to exist. There is no legal requirement that the actual contract itself should be in writing although it is preferable that this should be the case from the point of view of clarifying what has been agreed should a dispute later arise. Any contract whether written or oral will consist of at least three separate elements:- (i) any express terms which may have been agreed between the employer and the employee; (ii) terms which are implied by common law such as the implied duties of good faith and confidentiality which every employee owes to his employer; and (iii) terms which are imposed by statute and more recently regulations implementing EC directive which in most cases cannot be contracted out of. Terms of employment can also be imputed into the contract through collective agreements with trade unions. It should be noted that after the terms of employment are agreed they can only be changed by the express agreement of the employer and the employee. Any unilateral change to employment terms made by an employer would be a breach of contract which could constitute grounds for an employee claiming constructive dismissal. [top] Written Statement One of the obligations imposed by statute is for an employer to give an employee a written statement of prescribed terms if their employment lasts for one month or more. These prescribed matters are:- 1. The name of the employer and of the employee. 2. The date of commencement of the employment. 3. A statement as to whether any previous employment is treated as being continuous of the present employment (and if so, the date the continuous period of employment is deemed to have commenced). 4. The employee's job title, job description and place of work. 5. The scale of remuneration or method of calculating remuneration and the intervals at which it is paid. 6. The hours of work. 7. Holiday entitlement (including public holidays) and holiday pay. 8. Any terms and conditions relating to incapacity for work due to sickness or injury. 9. Any terms and conditions relating to pension schemes. 10. The period of notice to be given by either party to terminate the employment. 11. Any disciplinary rules applicable to the employee (or reference to a document which is reasonably accessible to the employee and which specifies any such rules). 12. The disciplinary and grievance procedures. 13. How long their employment is expected to continue if it is not permanent, or if it is for a fixed term, the date when it is to end. 14. Details of any collective agreements (in other words, any agreements made between you and the employee's representatives, for example, trade union representatives) that directly affect the employee's terms and conditions. If there is any change in the matters specified in the written particulars, the employer is obliged to give the affected employees written notice within one month of such change. The employee's remedy is a claim to Industrial Tribunal to order the employer to provide the statement. [top] Itemised Pay Statement Most employees have the right to be given by his employer an itemised pay statement, giving particulars of the gross amount of wages or salary, the amount of any variable or fixed deductions, and the purposes for which they are made, the net wages or salary payable and where the net amount is paid in different ways, the amount and method of each part payment. [top] Holidays Paid Holidays Under the Working Time Regulations 1998, every employee (whether part-time or full-time) is entitled to 4.8 weeks' paid annual holidays (i.e. 24 days based on a 5 day week). This is an obligation that cannot be contracted out of. The entitlement to paid annual leave, including the right to compensation payments for untaken leave when an employee leaves their job, begins from the start of their employment. Employees must give notice to take holidays. In the absence of an agreement between the employer and the employee, the employee should give at least twice the holiday period time to be taken. If the employer is to refuse the holiday request, that refusal must be within the period equivalent to the time off requested. For example, an employee wishing to take one weeks' holiday would have to give at least two weeks notice. The employer would have to come back within one week to refuse that time off. [top] Working Time The Working Time Regulations have further implications for the number of hours which employees work and their rest periods. The key points which should be noted are as follows:- The Regulations set a limit of an average of 48 hours per working week. Individuals can voluntarily agree to disapply the weekly working hours limit by written agreement but such arrangements can still be cancelled in the future by employees giving an agreed period of notice. The Regulations provide that "night workers" are subject to a limit of an average of 8 hours worked in each 24 hour period. Employers have to offer night workers health assessments before they are required to perform night work and periodically thereafter. Adult workers are entitled to one day off per week and adolescent workers are entitled to two days off. As this is an "entitlement" rather than a "requirement" an employee can voluntarily work on these days but cannot be required to do so. Adult workers are entitled to 11 hours and adolescents to 12 hours consecutive rest per day. Again these are entitlements and individuals can voluntarily work overtime. Adult workers are entitled to a minimum of a 20 minute rest break in their working day if it is longer than six hours. Adolescent workers are entitled to a minimum of a 30 minute rest break if they work for longer than 4.5 hours. Again an employee can forego his rest period. There are some exemptions from Regulations which principally cover "unmeasured working time" and "special circumstances". "Unmeasured working time" covers workers whose working time cannot be measured or pre-determined or can be determined by themselves. This can cover managing executives and family workers. Effectively these workers will only be subject to the annual leave entitlement. The second category of "special circumstances" allows for flexibility to certain categories of workers provided that they receive compensatory rest. These include security and surveillance activities and activities involving the need for continuity of service ie., dock work, hospital services, civil protection services etc. The regulations are capable of being adopted in a flexible way but only the working hours provisions can be contracted out of on a one to one basis. A more flexible approach can be adopted in relation to the implementation of other provisions by what are called "relevant agreements". These are either "workforce agreements" (applicable where there is no recognised trade union) or "collective agreements" which apply where there are unions. These agreements require the balloting of employees or applicable sectors of employees and are binding on the entire workforce or sector to work to the same work pattern. The implementation of the Regulations will be enforced by industrial tribunals. Employers who seek to force their employees to forego legal entitlements may find themselves in breach of contract or having constructively dismissed employees. [top] Minimum Wage The national minimum wage for those aged 22 and over is currently £5.52 p/h. For workers aged 18 to 21 (inclusive) the national minimum wage is £4.60 p/h. For workers aged 16 to 17 (inclusive) the national minimum wage is £3.40 p/h. Employees who do not receive the minimum wage will have a contractual entitlement to recover the difference by application to an Employment Tribunal or civil court and will be protected against victimisation from doing so. The national minimum wage does not apply to:- People who are genuinely self-employed Volunteers Apprentices who are under 19 or those over 19 who are in the first 12 months of their apprenticeship Members of the armed forces and People who work and live as part of a family (for example au pairs) [top] Unauthorised deductions An employer is prohibited from making any deduction from a worker's wages unless (i) the deduction is authorised by some statute or a provision of the worker's contract; or (ii) the worker has given prior authorisation in writing for the deduction. This does not apply to overpayment of wages or expenses. [top] Retail Employment Deductions from wages for cash shortages or stock deficiency can now not exceed 10% of gross wages. [top] Equal Pay The law provides that men and women are entitled to receive equal pay for equal work provided that they are "in the same employment". For this to be applicable the employees must be employed at the same establishments at which common terms and conditions are observed. [top] Part Time Employees Part time workers are now governed by the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. The regulations were introduced to make sure part-time workers are not treated less favourably in their terms and conditions than comparable full-time workers. Any different treatment must be justified objectively. A full-time worker is a worker who works the normal full-time hours for your business whilst a part-time worker is a worker who works less than the normal hours for your business. This means that all employees with one years continuous service have protected employment law rights. The one year period is of importance as in most cases employees with less than one years service will be unable to pursue a claim against his or her employer for unfair dismissal. The regulations cover part-time employees working under a contract of employment; and workers who are genuinely self-employed, who work for you part-time. This could include agency workers or workers on a fixed-term contract. For pay and pensions, the following issues apply:- Part-time workers should receive the same hourly rate of pay as comparable full-time workers. Once they have worked more than the normal full-time hours, part-time workers should receive the same hourly rate of overtime pay as comparable full-time workers. You should treat part-time workers the same as comparable full-time workers when you are working out sick pay, maternity pay, the length of service needed to qualify for payment, or how long they will receive the payment for. Part-time workers must have the same access to pension schemes as full-time workers unless you can justify treating them differently. For general employment matters, the following issues apply:- You should not exclude part-time workers from training because they work part-time. As far as possible, you should arrange for training to take place at a time when all staff can attend. The holiday entitlement of part-time staff should be in proportion to that of comparable full-time workers. Part-time workers should be allowed to take maternity leave and parental leave in the same way as a comparable full-time worker. The criteria you use to select workers for redundancy should be fair. Part-time workers must not be treated less favourably than comparable full-time workers. Detrimental treatment is also illegal. You should not treat unfavourably a worker who has made a complaint against you under the part-time workers regulations. [top] Continuity of Employment Depending on the length of an employees' period of continuous employment, certain rights accrue. For an update list of these rights please look at the Department for Business Enterprise and Regulatory Reform's website at www.berr.gov.uk [top] Choice of Trading Structure There are employment law implications for the choice of trading stature adopted by parties going into business. If parties go into business in partnership they are in essence self-employed as they will be remunerated by taking a share of the profits. On the other hand if the parties decided to form a limited company they would be an employee of the Company which in law is regarded as a separate legal entity. This means that even in a Company with one Director and one Shareholder, that Director would be an employee and would for example, prima facie be entitled to redundancy pay if his Company went into liquidation. [top] Service Contracts There is generally no difference in the employment legislation applying to senior executives to those of ordinary employees but although it is not a legal requirement, it is common practice for the Directors of limited companies to be given written Service Contracts with the company employing them. A Service Contract will set out the terms and conditions of the employment and will detail the Directors responsibilities to the Company and also the benefits he or she will receive while holding such office. Service Contracts usually contain enhanced employment law rights compared to those given by statute to ordinary employees and their provisions are usually agreed by negotiation between the Executive and the Company. Service Contracts are usually for a fixed period with the intention usually being to give the Director a degree of security of tenure. After the expiry of the fixed period the Service Contract will usually continue to "roll on" until such time as either party gives notice to terminate. It is also common for Service Contracts to contain restrictions on competition which will apply after the Director has ceased to be an employee of the Company. These are only enforceable to the extent which they protect the legitimate interests of the Company. It should be noted that a non-executive Director of a Company who has no Service Contract is not an employee. [top] Termination of Employment Very often people only see legal issues as something they have to deal with when they are staring them in the face instead of taking advice and planning how to deal with legal issues in advance. This sort of approach can lead to difficulties. This is the case where issues arise in relation to employment matters, particularly in relation to the termination of employment contracts where the failure to take legal advice before acting can result in an employer facing severe financial penalties. [top] Notice Subject to situations such as gross misconduct of an employee, employment cannot be terminated without notice. Statute provides that where notice is required the employee is entitled to a period of notice based on a sliding scale which increases with his length of service whereas the employer is entitled to one weeks' notice only. After an employee has "one months" continuous employment the employee is entitled to one weeks notice for every year of continuous employment completed, subject to a minimum of one weeks notice and a maximum of 12 weeks notice. Statute provides for only one weeks notice by an employee, no matter the length of employment. It is often the case that an employer will provide for greater periods of notice than those required by statute in the contract or written particulars of employment. This is often a good idea so that the employer has a longer period of notice in which he can find a replacement. [top] Unjustifiable Termination Dismissal is defined as the termination of employment by:- 1. The employer, with or without notice; or 2. the employee's resignation, with or without notice, where the employee has resigned because the employer by his or her conduct, in breach of the contract of employment, has shown an intention not to be bound by the contract (this is commonly known as "constructive dismissal"); or 3. the expiry of a limited-term contract without its renewal. A limited-term contract is a contract for a fixed term or the performance of a specific task, or one which ends when a specified event does or does not occur. An aggrieved party who's employment has been terminated has up to three months from the last date of his or her employment to file a claim before an Industrial Tribunal. In order for an dismissal to be "fair" it is for the employer to show that the reason or principal reason for the dismissal was one of the statutory reasons recognised as capable of being "fair" reasons. Thus, the onus of proof is on the employer. These are:- capability/qualifications; conduct; redundancy; contravention of a duty or restriction imposed by a statute; or some other substantial reason. It is up to the Industrial Tribunal to decide whether any dismissal was fair or unfair in all the circumstances. Remedies:- There are three possible remedies for unfair dismissal, two of which involve re-employment of the applicant by the employer:- reinstatement (the employee is to be treated in all respects as through the dismissal had not occurred); re-engagement (the employee is to be re-employed but not necessarily in the same job or on the same terms and conditions of employment); compensation. Orders for reinstatement or re-engagement normally include an award of compensation for the loss of earnings. [top] Redundancy Any employee dismissed by reason of redundancy who has two years or more continuous entitlement is entitled to a statutory redundancy payment calculated according to the same formula as set out above for the basic award on unfair dismissal. It is also important to note that even if the reason for a redundancy falls within one of the permitted fair reasons for a dismissal in certain circumstances a redundancy can still be unfair, where for example, an employee was unfairly selected for redundancy or where a dismissal took place without adequate warning or consultation or where the employer failed to consider any alternative employment which may have been available. It should also be noted that it is not an employee who is made redundant but rather the job an employee fulfils. This means that redundancy does not give employers the ability to pick and choose who they want to keep and who they want to go. Even where more than one person is a candidate for the position which is being made redundant, there still has to be an objectively fair criterion for selection between such employees. Employers should also be aware of the obligation to consult in advance with Trade Unions in certain circumstances when redundancies are proposed. [top] Employment Tribunal The Employment Tribunal and the Employment Appeal Tribunal were unified in 2003 in order to achieve a better quality of serve for tribunal users. The transfer of the Employment Tribunals Service will allow costs and resources to be shared across other major tribunals. [top] Settling Employment Disputes - the role of Compromise Agreements It will be clear by now that employment disputes can be potential minefields for employers and there can be circumstances in which the best option is to reach a negotiated settlement with a departing employee. Any formal or informal settlement of an employment dispute has to be properly documented before it will constitute a waiver of any rights which the employee may have had. If a settlement is reached directly between employer and employee a special document called a "Compromise Agreement" is required. A Compromise Agreement will state the details of the financial settlement and will set out the various waivers of the employee's potential claims that are required. The agreement will contain reference to the fact that the employee has had independent legal representation as without such representation the agreement will not be effective against the employee. This sometimes means that an employer will have to make a contribution towards an employee's legal costs as part of the settlement. Compromise Agreements are particularly relevant where there is little or no doubt that a departing employee has an entitlement to a future payment from the employer. Examples of this would be where the employer knows the dismissal is potentially "unfair" but decides that it is still worthwhile dispending with the services of the employee sooner rather than later and where the employee has a substantial notice period under a contract of employment which would otherwise have to be paid out. In the latter example it is often the case that directors with service contracts who have not only a substantial notice period but often fringe benefits which they would be entitled to during this period. If a company decided that it wanted to dispose with the services of a salaried director there are important company law matters which also have to be taken into consideration ie., the requirement for "Special Notice" to be given for an EGM of the Company to remove the individual from office as a director and the possibility of conduct which could be deemed to be "unfairly prejudicial" where the individual is also a shareholder of the Company. The details of these matters although important are out with the scope of this discussion and leaving them to one side for now a director is treated in exactly the same way as any other employee to the extent that he does not have enhanced rights and protections under his service contract. While these enhanced rights could lead to potentially very big payouts a departing director still has a duty to mitigate his losses. This means that if he obtains alternative employment fairly quickly this could significantly reduce his "wrongful dismissal" entitlement. In many cases the recognition of this will mean that there is some scope for negotiating the level of any pay off of a departing director - particularly as sums which can be said to be genuinely "ex gratia" may be payable to the director tax free as long as they are under £30,000. Recent case law has shown that the Revenue are beginning to clamp down on tax free payments - for example if a contract of employment has a clause which allows for payment in lieu of notice then this is now seen as a contractual entitlement and not a genuine ex gratia payment. Payments which are caught by this will not qualify for tax relief. The availability of tax relief is now something which has to be looked at carefully in each case. If a settlement package is agreed with a departing director the details of this will invariably be set out in a Compromise Agreement which would deal with the settlement of the contractual claim and the waivers of any statutory claims. [top] Discrimination The law does not allow employers to discriminate on the grounds of age, race, sex, marital status or disability. The legal test for determining discrimination towards an employee is objective, not subjective. This means that regard has to be had to what was done, not the reason or motive behind what was done. Any employee or job applicant who alleges that he is being discriminated against may make an application to an Industrial Tribunal. This could lead to a claim for compensation, a requirement that the employer will not discriminate or an interdict against the employer. [top] The Disability Discrimination Act 1995 Legislation now exists in terms of which all employers regardless of size who discriminate against disabled people are now liable to Industrial Tribunal proceedings. Under this legislation all employers (regardless of the size of the undertaking) will be considered to have discriminated against a disabled person if for any reason relating to their disability they treat a disabled person less favourably than others and the employer cannot show that such treatment is justified. Employers will also be deemed to discriminate if they do not take reasonable steps in relation to either their work place or working arrangements to redress the disadvantage suffered by a disabled person. This legislation may mean that employers' have to make physical alterations to their premises or equipment or alter working hours to accommodate the needs of the disabled. Employers will also have to ensure that their recruitment arrangements do not discriminate against those with disabilities as they can now be called upon to account to a Tribunal who will require to be satisfied that the employer has given due consideration to accommodating a disabled applicant's disability. The Disability Discrimination Act defines a "disabled person" as anyone who has a physical or mental impairment which has substantial long term effect on their ability to carry out normal day to day activities. Severe disfigurement is also covered in the Act as are progressive conditions such as cancer, multiple sclerosis and symptomatic HIV. A disabled person claiming discrimination in the employment field can bring a claim to Industrial Tribunal. If a claim is upheld payment of compensation including compensation for injury to feelings can be ordered. There is no limit on the amount of compensation which can be awarded and the onus will be on the employer or provider of goods and services to establish that any less favourable treatment of a disabled person was objectively justifiable. Another consequence of this Act is that any employer considering dismissing on the grounds of ill health would be unwise to do so without being in full possession of the facts in relation to the relevant employee. Ignorance of a disability is no defence. [top] Trade Unions It is unlawful for an employer to refuse to employ, dismiss or discriminate against an employee because the employee is or is not a member of the Union. If an employee is dismissed because he is or is not a member of a Trade Union then that dismissal will be an automatic unfair dismissal. [top] Statutory Sick Pay In relation to statutory sick pay the law provides that an employer is liable to pay employees up to 28 weeks statutory sick pay at a specified amount in any period of three years. SSP commences being payable after the first three days of sickness which are called "waiting days". After 28 weeks, the state takes on the obligations through transferring the employee on to state benefits - generally incapacity benefit. The current weekly rate for sickness is £72.55 (rising to £75.40 from 6 April 2008). [top] Maternity Rights There are various statutory employment law, paternity and adoption rights which cannot be contracted out of and these include maternity rights. The law of this subject changed in April 2007. Maternity Working mothers now have the right to 39 weeks' paid maternity leave, regardless of the length of their continuous employment. There is now additional maternity leave of a further 26 weeks' immediately following ordinary maternity leave, and will be available to all employees. There is therefore 26 weeks' 'ordinary' maternity leave and 26 weeks' 'additional' maternity leave. The lower rate of statutory maternity pay is currently £112.75 per week and will be payable for the latter 33 weeks of ordinary maternity leave. The first 6 weeks will be paid at a higher rate, which will remain at 90% of salary. Paternity Working fathers are now entitled to 2 weeks' paid paternity leave (which must be taken within 56 days of the birth). If the employee has had 26 week's continuous employment at the 15th week before the expected week of childbirth, and a relationship with both the child and the mother, he is entitled to paid paternity leave. The amount of statutory paternity pay is the same as the lower rate for statutory maternity pay. Adoption Under the new provisions, if, by the week in which the adoption agency matches them with the child they have at least 26 weeks' continuous employment, such employees (male or female) will be eligible for 39 weeks' paid ordinary adoption leave followed by a further 13 weeks' unpaid additional adoption leave. Previously, adoptive parents were only entitled to 13 weeks' unpaid parental leave. Statutory adoption pay will be paid at the same rate as the lower rate for statutory maternity pay, throughout the first 26 weeks of adoption leave. [top] Duties of the Employer towards his Employees The law requires that it is the duty of every employer to ensure so far as reasonably practicable the health, safety and welfare at work of all of his employees. In particular the employer must:- provide and maintain plant and systems of work that are, so far as reasonably practicable, safe and without risks to health. make arrangements to ensure so far as reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transportation of articles and substances. ensure the provision of such information, instruction, training and supervision as is necessary to ensure so far as reasonably practicable, the health and safety and welfare at work of his employees and also where necessary persons on site who are not his employees, for example employees of sub-contractors. so far as is reasonably practicable as regards any place of work under his control, ensure the maintenance of it in a condition that is safe and without risks to health, and ensure the maintenance of entrances and exits to an from such premises are also safe and without risks. ensure the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work. The Act is enforced by the Health and Safety Executive who have wide ranging powers of examination and investigation. The sanction for a breach of the act is a criminal rather than civil prosecution but the Health and Safety inspectorate try and avoid prosecutions and instead try and seek improvements through co-operation. The inspectorate also have powers to issue improvement and prohibition notices to offending employers. An improvement notice which will be issued by an inspector where he is of the opinion that one or more statutory provisions has been contravened and the contravention is likely to be continued or repeated. On service of a notice the offending person is given at least 21 days to remedy the contravention. If an inspector thinks that any activity covered by a statutory provision is being carried on or is likely to be carried on in a manner which would involve a risk of serious personal injury, he may serve a prohibition notice. The service of a prohibition notice means that the employer must stop the offending activity either at the end of the period specified in the notice or, in serious cases, immediately. [top] Transfer of Undertaking We will now turn to consider the employment law implications of what happens on "transfer of an undertaking." On the transfer of a business the employees are legally protected from dismissal arising as a result of the transfer, and if so dismissed, they can bring an action against the acquiring or disposing company. In the case of a share purchase the company's liabilities to its employees remain unaltered regardless of who actually has legal ownership of the Company. There are limited exceptions to the transfer of undertakings provisions and there will be no claim for an unfair dismissal where the redundancy is made for an "economic, technical or organisational" reason. In the case of an asset purchase in which the target company's business is acquired as a going concern the purchaser will by law be liable for the existing statutory rights of the employees of the business including those who are dismissed in the period up to the transfer. This covers both accrued employment rights to that date and future employment rights. There is increasing debate about just how far the transfer of undertaking regulations are capable of extending and there have been a number of cases on this matter where a business takes over or acquires a contract as opposed to another business. The examples of this have invariably been in the service sector where a business has successfully tendered for a new contract. The new contractor then takes over all or some of the workforce of the previous contractor and there have been disputes about whether the new contractor has acquired the accrued employment law entitlements of the new workforce. While these disputes are usually complex and every case would have to be looked at on its own facts, if it can be said that there is substantially the same entity doing the same thing under the new regime as under the old that there may have been a transfer of an undertaking with the new contractor acquiring the accrued employment law of its new workforce. The assumption of this continuing liability makes this an extremely important issue for purchasers acquiring a business and for those thinking of making redundancies after an acquisition as both actions will have cost implications which will require to be taken into consideration in any offer to buy a business or a tender for a new contract. [top] Night Workers With a growing trend towards 24 hour demands on our society, more and more companies are taking on night workers. These companies should be aware of the new protections now afforded to night workers under the Working Time Regulations 1998. Prior to the regulations coming into force, night workers were not given any other protection than workers on any other shift. Now, night workers are entitled to free health assessments before they begin night shift work, and these assessments must also be given thereafter at regular intervals. As a consequence of their obligations to night shift workers under the Working Time Regulations, in what is thought to be the first prosecution under the regulations, a company was fined after its failure to carry out a health assessment for a night worker in one of its premises. With this in mind, employers should be aware the special protections contained in the Working Time Regulations. Employers need to be aware of the protections given to night workers by the Regulations. The following are issues which should be considered: Firstly, what actually is a night worker: The Regulations confirms that a worker who normally works more than three hours at night most days they work; or a proportion of the days they work as agreed in workforce agreement; or frequently enough that it could be said that they work these hours as a normal course, then they have the status of a night worker. Night, for the purposes of the Regulations is between 23.00 and 06.00 unless otherwise agreed (any agreement must include the hours between 00.00 and 05.00). An employers obligations to night workers are: Night workers should not work more than 8 hours for each 24 hours over a period of 17 weeks. Those whose work involves special hazards or heavy mental or physical strain must not work for more than 8 hours in any 24 hour period. It is not generally permitted for any person under the age of 18 to work at night, subject to a few exceptions. Night workers must be provided with a free health assessment at regular intervals and employees who usually work daytime hours may be allowed to work at night only where they have been provided with a free health assessment. Where a medical practitioner finds a night worker to be at risk because of the nature of their work, the employer has a duty to transfer the employee to day work where possible. These obligations do not apply where: The night worker works a long distance from home and wishes to work longer hours over fewer days, or constantly works in a variety of locations, thus making it difficult for a pattern to be established. Work involves security or surveillance to protect property or individuals. Continuity of service or productions is required, e.g. hospitals, prisons, public utilities or industries where such work cannot be interrupted. There are seasonal demands in work such as tourism, post and agriculture. Unforeseen situations occur, or emergencies. Should any of the above apply, the reference period for the weekly working time limit is extended from 17 to 26 weeks and the employees are entitled to compensatory rest. Compensatory rest is where the workers are entitled to a period of rest which is equivalent to the rest time they have missed as a direct result of undertaking extra hours. All workers have a right to 90 hours of rest in a week on average. What actions should the employer of night workers be taking: It is a statutory obligation to provide night workers with regular health assessments, as the retail company prosecuted have now found to their cost. The assessment should be undertaken prior to the worker starting night work, and it must be followed up at regular intervals. While assessments can take the form of full medicals by medical practitioners, they may also be undertaken in the form of questionnaires which are then evaluated at a distance by health advisors who can then advise as to whether the worker is deemed suitable for night work, or if there is further action to be taken. The working hours of night workers must be recorded. Those who undertake work involving special hazards must be identified. Where it is known that an employee works over 8 hours each night, the employer must seek to reduce those hours. While these are the legal obligations on the employer, you should also consider other factors associated with night work and perhaps as a policy of good practice, take steps to make the adaptation of shift patterns easier to comply with. Employers may wish to consider the following when dealing with night workers: The shift pattern worked should be the least damaging in terms of health, especially the night shift. The body circadian rhythm runs on average at a 25 hour cycle rather than 24 hours. Accordingly, shift patterns should work with the body clock and not against it. Shift patterns should rotate forwards not backwards - mornings, lates and then nights. The human body can adjust to night working patterns, but is slow on average to make these adjustments. Usually this will take about 6 to 7 days. Therefore, during that week as the body adjusts a goodly sleep deficit will mount up. Research suggests that in terms of long term health the best way to work night shifts is either in short spells (the shorter the better), or in longer stretches of over one month. Night shifts worked in short spells results in the reduction of any sleep deficit and adjustment to normal living pattern is quicker. Workers should be encouraged to take some exercise. Regular aerobic exercise boosts energy levels and stamina and will increase alertness. It should be taken after sleep. It also raises the body temperature making the worker feel more awake. [top] Restrictive Covenants If you have employees who have close relationships with your clients/customers, you should consider making those employees bound by a restrictive covenant. Primo facia, these are in restraint of trade and unenforceable except insofar as reasonably necessary to protect the goodwill of your business. Careful drafting is essential, and the drafting should be tailor made to your particular business. You cannot stop your employee earning a living. He is entitled to use his own know how and knowledge he has gained during your employment for his own benefit or the benefit of new employers unless he is stealing confidential information or acting contrary to a contractual restriction. We normally recommend staying away from restrictions which stop the employee carrying out similar duties in a geographical radius, and we prefer to make the employee contractually bound not to solicit business from the company's existing customers or clients. But note that these should be customers or clients with whom the employee had personal dealings, not all customers of the business. Covenants can be enforced by interdict, and you may be able to obtain an interim interdict without any prior notice to the employee. Each case will be judged on its merits. If you wish to discuss this issue further, please contact Morinne Macdonald or David Beveridge. [top]
		Macdonald Henderson Limited t/as Macdonald Henderson Solicitors, Registration No. SC284173, Registered Office: Standard Buildings, 94 Hope Street, Glasgow, G2 6PH ©2007 Macdonald Henderson \| mail@macdonaldhenderson.co.uk \| Small Print