Holiday entitlement: use it or lose it!

An Employment Appeal Tribunal has clarified that workers are not automatically entitled to holiday pay if they have not complied with their employer's rules for taking holidays.

The case of Lyons v. Mitie involved a claim for holiday pay from an employee whose contract said that all applications for holiday must be made on a holiday request form and that the form “wherever possible should be submitted at least four weeks prior to the commencement of the holiday”. Shortly before the holiday year-end, the claimant asked to take his outstanding holiday entitlement but he did not comply with the four-week notice requirement. The holiday request was refused. The employee argued that the notice requirements set out in the contract effectively prevented him taking his full entitlement before the year end, and resigned.

The decision confirms that a worker must give any contractual notice required in order to benefit from the right to holidays under the Working Time Regulations. The Tribunal did, however, stress that employers must not apply their rules in such a way as to effectively defeat a worker's entitlement to annual leave in any given year.

In addition, if an employee is forced into applying for holiday late in the year because of sickness, European law may well require the employer to permit him or her to take the leave.


Extreme Weather: What to do when your staff are stranded

Do I have to pay staff who do not come in to work? Staff on an hourly rate are paid for the hours they work so you probably don’t have to. Salaried staff though, are entitled to pay. They should be able to show that they were ready and willing to work but that this was not possible. Note that in many cases deductions from wages are unlawful so check with ITC before stopping pay to anyone.

Can staff take a day’s holiday if they can’t get in to work? Check your holiday rules about when/how holiday is granted especially when a request is made after the day off. There is no statutory obligation to allow a retrospective request for holiday.

Can I make an employee take a day’s holiday? Only if their contract says that you have the right to so this.

What about working from home? It can often be be sensible to encourage employees to work from home in seriously bad weather where practicable. It is up to you to ensure that this can and is being done productively. A home working policy can help and should make it clear that working from home is a privilege and not a right.

What if someone could have made it into work but chose not to? This would be a disciplinary matter. You should investigate fully and give the employee a chance to explain themselves.

What about taking a day off because of disruption to childcare responsibilities or school closure? The law allows parents to take emergency leave when there is an unexpected disruption to their childcare arrangements. Unless contracts say otherwise, leave for these reasons is unpaid.

What if the workplace is closed? If you decide to close the workplace you must pay your employees unless their contract of employment has an “unpaid lay-off” clause.

The show must go on? If unexpected weather conditions mean that not enough of your company can get to the venue to put on a show you could argue that your contract with the public has been “frustrated” by outside events and therefore you are released from your obligations. In practice it will always be better PR to offer tickets for an alternative date or a refund even though you may well still have to pay your company (see various reasons above).

From 6 January 2010 skilled workers with a UK sponsor and their dependants successfully applying to extend their stay under Tier 2 of the Points Based System will receive an identity card for foreign nationals, which means that they must have biometric enrolment. There are 11 Home Office biometric enrolment centres around the UK and applicants living within certain postcodes are now able to enrol their biometrics at a limited number of Crown Post Offices nationwide.   Guidance on checking the cards is available on the UK Border Agency website  The card is checked visually and physically. The applicant's entitlement to work, study or access public funds is captured in the "remarks" section of the card.

Bringing in Long Term Migrant Workers
Changes to the Resident Labour Market Test (RLMT)

From 14^th December 2009 if you wish to bring in workers under Tier 2 of the Points Based System you will need to advertise the post for four weeks at JobCentre Plus.

There will not be a requirement for the four weeks to be continuous. For example, businesses will be able to advertise skilled jobs for two weeks initially. If a suitable resident worker applies, the business can appoint them straight away. However, if no suitable resident workers apply, the resident labour market must be tested for a further two weeks before they can appoint a migrant worker.

Updated guidance will be published on the UKBA website on 14th December.

Please note that the RLMT does not need to be applied if you are bringing in dancers who qualify under the exemptions for skilled classical or contemporary dancers - if in doubt, call ITC.

First aid management for harness suspension when working at height

The Health & Safety Executive ("HSE") has undertaken an evidence based review of published medical literature on the effects of a fall triggering harness suspension. As a result of this the HSE has confirmed existing advice that no change should be made to the standard first aid guidance for the post recovery of a semi conscious or unconscious person in a horizontal position, even if the subject of prior harness suspension.  It dismisses suggestions of recovery in a semi-recumbent or sitting position as without any sound evidence base and possibly dangerous through prolonging the lack of blood return to the brain.  More information and links at http://www.hse.gov.uk/falls/harness.htm

INTRODUCTION OF UK IDENTITY CARDS:
CONSEQUENTIAL CHANGES TO LEGISLATION ON THE PREVENTION OF ILLEGAL WORKING

The new voluntary identity cards for UK nationals and for EEA nationals, issued under the Identity Cards Act 2006, have been added to the list of documents that employers can check and copy to avoid liability for a civil penalty under the illegal working legislation.

The Cards will currently only be issued to British citizens in exceptional cases. Most British citizens will continue to demonstrate their entitlement to work by showing their UK passport. or their full birth/adoption certificates in combination with a document containing their national insurance number.

EEA nationals will usually also continue to be able to demonstrate their entitlement to work by producing their national passport or national identity card.

Accession state nationals, who do not have an automatic right to work here continue to need additional checks to establish whether the applicant has:

· applied to register with the Home Office (nationals of Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia)   or

· been granted a work authorisation (nationals of Bulgaria or Romania) or

· is exempt from the requirements of the relevant accession regulations.

These arrangements are unaffected by the launch of the new Identification Card.

Details about the identity cards including examples and information on safeguards can be found at: http://www.direct.gov.uk/en/Governmentcitizensandrights/Identitycards/DG_174258

USING PHOTOGRAPHS OF
INDIVIDUALS IN MARKETING

An Advertising Standards Authority (ASA) adjudication of 30 September upheld a complaint that a person's image was used in a marketing communication without that person's written consent.

If you plan to use images of staff or members of the public in marketing material make sure you have their consent in writing.  This consent should clearly state what use you will make of the image.  Make sure that you keep this consent form.


VAT Returns

You can now register for VAT, submit VAT returns and change your VAT registration details online at www.hmrc.gov.uk.

From 1 January 2010, you will also be able to claim VAT refunds from other EU countries online. You’ll only be able to make these claims online from that date.

If your turnover is more than £100,000, you will have to file your VAT return online for accounting periods that start on or after 1 April 2010. Or if you register for VAT on or after April 1 2010, you will have to file online regardless of your turnover.