Yes!

All employees earn holiday pay. It is also important to remember that part time employees cannot be discriminated against, which means that you cannot give them less holiday (pro rata) than full time workers.

The reason for this is that the majority of zero hours or casual workers (who are all deemed to be part time workers) are either female, carers, young or non-British workers. All of which are protected characteristics.

A full-time employee’s statutory minimum holiday entitlement in any year is 28 days which can include bank holidays.

The normal bank holiday entitlement is eight days a year.

A zero hours employee or casual worker is entitled to a pro rata entitlement of the full time holiday, based on the number of hours they have worked in that week/month/year.

If, for example, they worked an average of 20 hours a week over the year, then they would be entitled to 14 days holiday in the year. Holiday is “paid time off”.

There is an advantage to zero hours workers though – you can pay out the holiday entitlement monthly without “losing” their normal working hours for you. They are simply deemed to be on holiday during the hours they are not working for you.

To calculate the holiday pay for zero hours or casual workers, you have to calculate it using average hours worked over 52 weeks, rather than, as it was previously, 12 weeks or even worse, multiplying working hours by 12.07%.

Weeks are not included in the calculation if they are:

• annual leave
• sickness absence
• nil earnings, or
• statutory payments such as paternity pay.

If zero hours or casual workers have been with you for longer than 52 weeks, but there are weeks with nil earnings, you are expected to go back up to a maximum of 104 weeks to find your 52 weeks of pay reference period.

For new zero hours employees or casual workers who haven’t worked 52 weeks, you should base your holiday pay calculations on the number of pay weeks that are available.

Collect the data on a weekly basis and make sure you are recording all overtime worked (it also must be included in this calculation).

No!

You can never “just fire” any employee. As an employer, you have a duty to make sure that you follow a fair and legal process when dealing with any employee.

The easiest employees to dismiss are those under two years. If an employee has been working for you for under two years, then they are not protected from unfair dismissal. This doesn’t mean that they have no rights – but it does mean that if they don’t have any protected characteristics (age, race, gender, gender reassignment, pregnancy & maternity, marriage & civil partnership, disability, belief, sexual orientation) then you can dismiss them easily.

If they do have a protected characteristic, then you need to make sure that you jump through all the paperwork “hoops”. You can, for example, fire a pregnant zero hours worker. You will however need full documentation to prove that it is due to performance, and not due to the pregnancy that they are being dismissed.

We would always recommend checking about firing a zero hours or casual worker with an HR professional, mainly because any employee can start a tribunal free of charge. And if they accuse you of discrimination, you will need to prove you are innocent. They will not have to prove you are guilty. The financial award if you lose a tribunal case for discrimination is unlimited (over £2 million in the 2022 case Macken v BNP Paribas).

If a zero hours or casual worker has worked for you for over two years, then you have to follow the same processes as you would for a full time or part time worker. After the two-year mark, all zero hours or casual workers are protected from unfair dismissal. This means that you have to follow a disciplinary process, a restructuring process or do a settlement agreement if you want to part company with them.

As the employment term for a zero hours or casual worker feels different to that of a full-time worker, most employers feel as though their notice period too should differ from that of a regular employee. Because zero hours or casual workers have the exact same rights as any other employee, this is not the case.

A zero hours or casual worker is entitled to the exact same amount of notice as any other employee. If a notice period is defined in their contract, then they will have as long is as written. If it isn’t in their contract, they are entitled to the statutory period:

• Instant on both sides if they have been working for you for under one month.
• One week for each completed year of service.

Do remember that this is also the notice period allowed for each employee. If you just have a verbal contract with your employee, statutory notice period is also applicable.

Unsurprisingly, just like with all other employees, there is a formal process you must follow whilst employing a zero hours or casual worker.

They must have a contract when working for you, and if not – then they don’t count as a zero hours or casual worker.

If they have no contract, then they are a part-time worker, not a zero hours or casual worker.

You must have the correct wording in your contract for it to count as a zero hours or casual worker contract. It is not enough to state that they have variable hours.

You need to state

• That you do not guarantee to give them any minimum number of hours every week.
• That they have the right to refuse work without penalty

You are also not allowed to restrict them working for someone else outside of their work for you. That clause needs to be removed from the zero hours contract for it to be valid.

Zero hours or casual workers are workers, and under employment law, workers can have lesser statutory entitlements. However, most employers do not use zero hours as zero hours workers.

They give them fairly regular hours, on the same days each week. Which makes them, through custom and practice, a part time worker. So to avoid yet another claim at tribunal, it is best to assume that they have the same entitlements as your other staff, on a pro rata basis according to the time they have worked.

The Office for National Statistics (ONS) has just released its sickness figures for 2021. And they aren’t as bad as you might think.

In 2021 approximately 149.3 million working days were lost due to sickness or injury. Which sounds a lot but is the same as just 4.6 days per worker per year.

The most common reason for sickness absence was “Other” conditions, which accounted for 41.5 million lost days. This includes accidents, poisonings, infectious diseases, skin disorders, diabetes, and anything else not covered.  From April 2020, interviewers were advised to code any mention of Coronavirus as ‘Other’, when a supplementary question was asked.

Coronavirus absence accounted for 24% of all sickness absence.

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I was talking to a club the other week who’d got themselves in a sticky situation, pension wise.

An employee had left them back in February and had come back to them to let them know that his pensions was now “set up” and ready for them to make payments.

Got the foggiest?  No, we didn’t either.

Turns out that – last year – when the employee had finished his 3-month probation, the club had sent him a letter asking if he wanted to enrol in the NEST pension scheme or contribute to his own personal pension.

[Read more…]