A to Z of employment law
Maz Dannourah

K-O

K is for Keeping In Touch days

L is for Lay-off

M is for Maternity Leave

N is for Non-payment of wages

O is for Overtime

Keeping In Touch days

When an employee is on maternity, paternity or adoption leave they have the right to work for up to ten days.  These are called Keeping In Touch days.

Keeping In Touch days are optional, and both the employer and the employee need to agree to them before they are used, as should the type of work the employee will undertake and the pay they will receive for it.  The employee must, of course, receive at least the National Minimum Wage.

Keeping In Touch days are useful for employees, as they still feel part of the workplace.  They may also be useful for training courses or conferences, to ensure that staff skills are kept up to date whilst they are on leave.

Lay-Off

Lay-off is the term used when an employee is not provided with work by their employer and the situation is expected to be temporary.

Employers will have the right to lay off staff where it is expressly written into the contract, or in an agreement with a trade union.  In addition, it may be an implied term if, for example, it is usual for a specific industry to do so (custom and practice).

An employer does not have to pay an employee whilst they are laid off unless the contract of employment says so.  Employees may be entitled to a statutory guarantee payment from the employer, limited to a maximum of five days in any one three-month period.  The payment is calculated by reference to the employee’s normal working hours and rate of pay, but payments are subject to a maximum daily rate which currently stands at £26.00 per day (subject to a maximum of five days or £130.00 in any three month period).

As with all issues concerning employees, a clear policy and open lines of communication are advised both in the lead up to lay-offs and during the lay-off period so that employees can be kept up to date with developments and how it may affect their position.  Employees can obtain alternative work during lay-off, providing they tell their employer and ensure they are available for work when the lay-off period ends.

Maternity Leave

Statutory Maternity Leave is 52 weeks.  It is made up of two parts:

  • Ordinary Maternity Leave (26 weeks)
  • Additional Maternity Leave (26 weeks)

It is not compulsory for employees to take the full 52 weeks, but they must take at least two weeks after the baby is born (or four if they work in a factory)

The start of Maternity Leave

Usually, the earliest Maternity Leave can start is 11 weeks before the expected week of childbirth.  It could also start, however:

  • the day after the birth if the baby arrives early;
  • automatically if the employee is off work with a pregnancy-related illness in the four weeks before the baby is due.

Employees should inform their employers of the date on which they wish to start their Maternity Leave at least 15 weeks before the baby is due.  The employer then has 28 days to write to the employee to confirm the start and end dates of Maternity Leave.

If an employee changes the date on which she wants to return to work, she must give the employer eight weeks’ notice.

Terms and conditions

Employment terms and conditions of employees are protected whilst on leave and they are entitled to any pay rises and improvements in terms and conditions given during their leave. Employees continue to build up holiday entitlement and can take any holiday accrued (built up) before or after their leave.

Returning to work

If employees take Ordinary Maternity Leave, they have the right to return to their job.  If they take Additional Maternity Leave, they have the right to their job or to a job that is the same or better in terms of pay and conditions.

Non-payment of wages

If an employer does not pay all or part of the wages due to their employees, employees can claim the money back via a claim for unlawful deduction of wages in an Employment Tribunal.

An unlawful deduction of wages occurs when an employer withholds payment of wages otherwise due to an employee, and the employer does not have authorisation to withhold the payment.  ‘Wages’ in this instance could include salary, holiday pay, commission, statutory sick pay, statutory maternity, paternity or adoption pay and notice pay.

An employer can only make a deduction from wages if:

  • it is authorised by statute, eg, tax and national insurance;
  • it is authorised in the contract of employment;
  • the employee has previously agreed in writing to the deduction being made.

The employee has three months from the date of the non-payment of wages to make the claim to the Tribunal.  In the case of a series of deductions, the time limit will usually run from the date of the last deduction.

Overtime

Overtime is referred to as work that takes place outside normal working hours (which are usually defined in a contract of employment).

Employers do not have to pay for overtime, but the average amount paid for the total hours worked must not fall below the National Minimum Wage.

If employees are to be paid overtime, the rate at which they are paid will usually be stated in their contract of employment.

Employers cannot usually force employees to work overtime. Employees’ contracts of employment will normally determine whether or not an employee is obliged to work overtime and in what circumstances.  A contract of employment may also specify circumstances when overtime may not be guaranteed or when reductions may be imposed (for example, when costs are to be saved in order to avoid compulsory redundancies).

Part-time workers are often only paid overtime if they:

  • work longer than the normal hours of full-time staff;
  • work longer than the hours stated in their contract of employment;
  • work unsocial hours (eg, late at night) for which full-time staff would usually receive additional pay.

Some employers will give Time Off In Lieu (TOIL) instead of paying overtime.  This will be agreed between the employer and the employee.

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