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Little helpers, big problems

My workload goes through the roof (or more accurately down the chimney) at this time of year. Christmas Eve is by far my busiest night of the year.

My workload goes through the roof (or more accurately down the chimney) at this time of year. Christmas Eve is by far my busiest night of the year.

I run a busy North Pole based workshop and distribution facility which is operative all year round but really has to step up production in December to meet demand – and to avoid disappointing the many little girls and boys who rely on timely delivery.

However it has been far from merry and bright on the shop floor this month! My little helpers have been causing big problems! Please advise.

Regards

Anonymous

Q1: ‘Elvish’ Employment Status

One of my staff has raised concerns about his contract. He says that 'little helper' is a confusing term that leaves him unsure of his employment rights and that his contract should state that he is an employee. How would a Tribunal decide?

There is no easy answer to this one. The test that an Employment Tribunal will apply to determine employment status is complex and multi faceted. The Tribunal will take into account what your contracts say, but much will depend on the reality of your working arrangements and what actually goes on in your workshop. Lots of factors may be relevant. Do your Little Helpers wear a uniform with your workshop logo on it? Do they use your tools and equipment or supply their own? How much autonomy do they have over whether they accept work and how they carry that work out? We’d agree though that the term ‘Little Helper’ is unhelpful in an employment law context. This issue merits some careful thought when your pressure period is out of the way!

Q2: Overtures about overtime

My Little Helpers often read Weightmans’ Legal Updates at break time and as such are fully informed about the recent EAT decision in the Fulton v Bear Scotland case. They are insisting I factor their Christmas Eve voluntary overtime into their holiday pay. Do I have to?

If your Little Helpers are indeed avid readers they may already be aware that the recent EAT decision left a lot of questions unanswered.

The recent judgment looked only at ‘non-guaranteed’ overtime (a type of overtime that an employer may choose to offer but the employee must work if offered). However, the ruling can be argued to apply to voluntary overtime too, if it performed regularly or according to a discernable pattern.

Your business may be at risk if your employees work predictable overtime (albeit voluntary) year in year out on the same night each year. This may be enough to bring their extra Christmas Eve hours within the definition of ‘normal remuneration’, which should now be used as the basis for calculating holiday pay.

We imagine that many of your Little Helpers may be planning to take leave in January when the rush has subsided. Whilst aligning leave to a lull in production may suit the needs of your business it might potentially have the knock-on effect of substantially increasing your annual leave bill. We would be happy to carry out a Holiday Pay Audit at the earliest opportunity to fully assess risk and your potential liabilities on this issue. Just let us know and we’ll dig out our cold weather gear!

Q3: The morning after the night before

Most of my Little Helpers are happy to work on Christmas Eve but many are claiming they have Christmas Day plans and aren’t able to work. I need them to help with cleaning up the workshop and tying up loose ends. Can I make them work Christmas day?

The starting point is the contract of employment. Is it an express term of your Little Helper contract that they may be required to work Christmas Day (or any other public/religious holidays) due to the business need? If so, then a refusal to do so will potentially constitute a breach of contract.

If there is no express term, you may need to rely on the provisions of the Working Time Regulations (WTR) which allow you to exercise reasonable control over when a worker takes leave.  You will need to serve a counter-notice on any Little Helper who gives you notice of intention to take their annual leave. The period of counter-notice must be at least as long as the period of requested annual leave, so you’ll need to move quickly if a few days consecutive leave have been requested.

Take care too that you are not in breach of the Working Time Regulations by asking employees to work the day after a busy night shift. Bear in mind that a worker is entitled to a daily rest of eleven uninterrupted hours in every 24 hour period. It’s an ‘elf’ and safety issue!

Merry Christmas!