In our article about Written Contracts and Statements we look at how an employer can make changes to your contracts of employment, but here we look at two other options your employer may consider, which are:
When an Employer does not have enough business to enable them to employ all or part of their work-force for a temporary period. An employee is laid-off if they do not work for a week and get no pay for that week. The employer may describe this as unpaid holiday rather than a lay-off (although it is still a lay-off).
2. Short-time working.
This is when your hours of work are reduced (by reducing the number of days or shifts per week you work, or the hours per day you work) by more than 50%, and your pay is reduced accordingly, because there is not enough work to operate normal working hours.
This can also apply if your if your employer’s business premises is temporarily closed (e.g. due to flooding, fire, power supply failure).
Lay-offs or short-time working will not apply if you are a temporary worker, only if you are an employee.
There is a general right in common law to tell most employees not to turn up for work, but there is no general right to not pay employees because work is not available.
Lay-offs or short-time can be imposed on you only:
- If there is a contractual right to do so
- A collective agreement (with a Union) to do so exists, or
- A precedent has been created through previous custom and practice at your workplace.
In 2016, the Employment Appeal Tribunal considered the case of Craig v Bob Lindfield & Son Ltd and whether there was a ‘reasonable’ amount of time a lay-off could continue. The employer had a contractual right to lay-off its staff and one employee resigned after 5 weeks of lay-off without pay, claiming he had been constructively dismissed as the period of the lay-off was unreasonable. He did not succeed as he could not show there was an implied term in his contract that the lay-off period had to be reasonable. Therefore there was no breach of contract and so it was not constructive dismissal. However, employers should be careful about keeping employees laid-off with no reasonable prospect of there being more work as this is likely to be a breach of contract as it could deny the employee a redundancy payment they are due (see below).
If none of these exist your employer should consult with you (or your Union representatives) about why this change is necessary, with a view to seeking your consent.
If your contract (or other circumstances above) does allow for lay-off or short-time working an employee may be entitled to:
- Receive a Statutory Guarantee Payment (which ‘keeps’ the employees’ service during the period) – for more information on Guarantee Payments see below, or
- Claim a Redundancy Payment (if they have worked for their Employer for 2 years, and the lay-off or short-time working lasts for 4 consecutive weeks or for any 6 weeks in a 13 week period) – for more information on how to claim a Redundancy payment in these circumstances see below.
If your contract does not allow for a lay-off or short-time working then an employee who has had no pay of any kind for a particular week, because they have not been provided with any work, or has been put on short-time working may be entitled to:
- Choose to resign and claim constructive unfair dismissal (due to a breach of your employment contract) if they have 2 years service, or
- Claim that there has been an unlawful deduction of wages. The employee must raise a grievance with their Employer before making a claim to an Employment Tribunal for this.
If, however, an employee agrees to a lay-off or short-time working then this could constitute a change in their contract of employment and they may be entitled to:
- Receive a Statutory Guarantee Payment (as above), or
- Claim a Redundancy Payment (as above)
- These payments can be received for a maximum of 5 days in a 3 month period (if the lay-off days do not follow on immediately from each other the 3 month period is calculated separately for each day of lay-off).
- Guarantee payments are currently up to £26.00 per day (from 6th April 2015; not increasing in 2016).
- On days when a guaranteed payment isn’t payable, it may be possible to claim JobSeekers Allowance
- You should usually be able to do other work for another employer if you are laid-off or on short-time working (unless you contract prohibits this), but this should not be for a competitor of your employer
- If you want to do other work you should let your employer know and get their agreement to this. You should make sure that you can return to your normal job as soon as your employer is able to offer you work again. If you don’t do this your employer may argue you have resigned by taking up other work
- If your employer fails to pay a guarantee payment you can make a claim to an Employment Tribunal within 3 months.
- You cannot be dismissed or selected for redundancy for challenging an employer’s refusal or failure to pay a guarantee payment or for taking a claim about this to an Employment Tribunal.
Guarantee payments are not made where:
- You have less than 1 months service
- The lay-off is as a result of industrial action
- The employer offers you suitable alternative employment for the day in question and you refuse this
- You refuse a reasonable request to remain on stand-by during the lay-off period.
Redundancy Payments in these circumstances
- You are entitled to claim a redundancy payment if you have been laid off or kept on short-time working for at least 4 consecutive weeks.
- You must give your employer notice of your claim for redundancy within 4 weeks of the last week of lay-off or short-time working
- Your employer has 7 days to accept your claim or give you written counter notice of the claim (a counter claim will be given where the Employer believes work will re-start soon)
- If your employer does not give you counter-notice of the claim they have accepted your claim to redundancy
- A counter-notice by your employer means they expect work will start again (within 4 weeks, that must be continuous for at least 13 weeks)
- The employer can withdraw their counter-notice in writing
- You must give notice to terminate the contract of employment by resigning after 7 days after you have told your employer you are claiming redundancy and they have not counter-claimed, or they have withdrawn their counter-claim (you have up to 3 weeks to hand in your notice of resignation after the first 7 days)
- If you follow the correct procedures to claim a redundancy payment but your employer argues you are not entitled to it or doesn’t pay it you may be able to make a claim to an Employment Tribunal for this payment
If you are an Employer and need ongoing professional help with any staff/freelance issues, or a Contractor/Freelancer/Employee with a complicated employment related problem, then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an accurate, up to date or authoritative interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by Kheel Centre