June 9

Surviving Euro 2016!

Euro 2016 starts on 10 June, with 51 matches due to be played in France over the course of a month. Many matches take place during or close to many employees’ normal working hours and thus employers need to plan ahead to minimise potential disruption.

England, Wales and Northern Ireland are guaranteed three games each at the group stage. England and Wales have been drawn together in the same group. The two countries face each other on Thursday 16 June at 2.00pm, scheduling that is sure to provide a challenge for many employers!

How best to get through the next month ensuring fun is had by all:

1. Deal fairly with competing requests for time off

Euro 2016: UK nations’ group games

England and Wales (Group B)

Sat 11 June 5.00pm – Wales v Slovakia
Sat 11 June 8.00pm – England v Russia
Thurs 16 June 2.00pm – England v Wales
Mon 20 June 8.00pm – Slovakia v England
Mon 20 June 8.00pm – Russia v Wales

Northern Ireland (Group C)

Sun 12 June 5.00pm – Poland v N Ireland
Thurs 16 June 5.00pm – Ukraine v N Ireland
Tues 21 June 5.00pm – N Ireland v Germany

There may well be an increase in holiday requests from employees who want time off to watch matches. Many requests will be for half a day only to watch a particular match, but others will be for a few days to travel to France. It may not be possible to accommodate all requests but employers should deal with requests fairly and consistently – ie on a ‘first come first served’ basis or putting names in a hat.

By setting out in advance how annual leave requests will be dealt with, employers can manage employees’ expectations.

Where holiday requests cannot be granted, it may be possible to be flexible around working hours to allow employees to watch matches provided they have put their hours in.

2. Take steps to control sickness absence

Staff who know their employer will be monitoring sickness absence are less likely to “pull a sickie” to be able to watch a match (or recover from over-celebration (or commiseration) from the night before).
Employers can help to control short-term sickness absence by making their sickness absence policy clear and addressing the situation if they suspect that an employee’s sickness is not genuine.

3. Take advantage of the tournament to boost morale

Employers can use football tournaments like the Euro 2016 to boost morale among staff by screening key matches in the workplace and allowing employees to watch games together during working hours if operational requirements permit. A sweepstake also tends to be a brilliant way to get everyone involved.

4. Avoid problems caused by excessive time-wasting

During Euro 2016, some employers may experience a reduction in productivity due to employees:
• watching matches on their work desktops and laptops (which may also cause problems with the employer’s network);
• watching matches on their own devices; and
• talking about the football.

While some excitement and wanting to keep up with the latest developments is inevitable, employers can take action to deal with excessive time-wasting and misuse of their systems.

5. Take care to avoid discrimination

Employers need to ensure that no particular groups are disadvantaged during Euro 2016. For example, requests for time off and flexibility around working hours by employees who are not following the tournament should also be considered fairly and consistently.

Employees who are foreign nationals may want to follow their own team and any flexibility afforded to England, Wales and Northern Ireland fans should also be extended to them.

6. Make your expectations clear to employees

By setting out their expectations and clarifying their rules in a sporting events policy before Euro 2016 begins, employers can help to avoid issues around misconduct, absenteeism and harassment.

It should be FUN and a great opportunity for all within the organisation (even if they didn’t think they would be remotely interested!) to get involved. Employers who enter into it with the right spirit, making it clear to all that football can be accommodated provided certain rules are abided by, are much more likely to have a workforce fully engaged in their work…until that whistle blows at which point all, including management, can down tools and enjoy – hopefully!

June 6

Are your interns entitled to a salary and annual leave?

With the summer approaching, students or those just leaving higher education, are going to be on the lookout for internships or work experience placements to enable them to gain valuable work experience and improve their CV ahead of any future job application.

Typically these schemes have been unpaid, or the employer simply offers to pay travel or lunch expenses, and organisations have been accused of taking advantage of people without a job and bypassing the laws on the minimum wage.

Tribunals are taking up the cause and a number of recent legal cases seem to say that an intern who does work that would be paid work if done by an employee or contractor, can be a ‘worker’ for the purposes of national minimum wage law. If they are a ‘worker’, you must pay them at least the relevant national minimum wage for their age – even if they are prepared to work for nothing.

Identifying workers

The law defines a ‘worker’ for the purposes of national minimum wage law as someone who has either:
• A contract of employment with you, or
• A contract with you under which they must personally perform work or services for you. The contract can be in writing or expressed orally or implied from the circumstances.

Using this definition, it is usually relatively simple to determine whether an intern is personally providing a service, and thus entitled to the national minimum wage. The fact that there may be no formal written contract in place and that their title or role is described as work experience/internship/voluntary work makes no difference.

A clear example of where an intern would not be personally providing a service, and thus not entitled to the minimum wage, would be where they are simply learning a job by shadowing a member of staff, no work is carried out by the intern, they are simply observing – they would find it difficult to show they were actually providing a service to the organisation.

Exceptions

It is important to be clear about those students who would not be classified as a ‘worker’ in the eyes of the law and therefore would not be entitled to the national minimum wage:
• students on work experience for fewer than 12 months as part of their course
• students on work experience who are still under the school-leaving age (but not school-leavers working in the UK during a gap year)
• some apprentices and some volunteers

An intern is more likely to be classified as a ‘worker’ during their placement if:
• their placement lasts more than a few weeks
• the placement may lead to an offer of permanent, paid work
• the employer is obliged to give them work to do, and they are obliged to do it
• it is real work of the sort a paid employee or contractor would be asked to do
• the business is relying on their specific skills in the tasks they undertake – for example, a marketing student might be asked to draft a market research proposal to put to an external agency
• they cannot come and go as they please

For example, in one legal case a 21-year old worked as an intern on a publishing business’ website for two months. She worked from 10am to 6pm each day, and had been promised payment. At the end of the two month period the company argued she had been working as an unpaid intern.

The Employment Tribunal upheld her claim that she was a ‘worker’ for the purposes of the NMW, even though she had no written contract. She was clearly doing proper work, of real benefit to the business, which would have been done by a paid employee or contractor if she had not done it. It therefore said she should be paid for her work.

In that case, the intern was doing valuable work. Work can be less valuable but still amount to real work – for example, opening or delivering post, stuffing envelopes or photocopying.

Right to paid holidays

As we have established, the majority of interns will be providing a service and thus deemed to be ‘workers’ who will attract at least the national minimum wage. In addition, those ‘worker’ interns will also be entitled to at least 5.6 weeks’ paid holiday per year – or, more likely, the pro-rated equivalent to reflect their part time or short term contracted status. This holiday may be taken during the internship or the intern may be paid in lieu of their accrued but untaken holiday at the end of the internship.

Either way, ensuring your intern is allocated the correct amount of holiday entitlement is as important to remember as paying your intern the national minimum wage.

Consequences of ignoring the law

It is important to know if, based on the reality of the relationship, the intern is a ‘worker’ and therefore entitled to the national minimum wage. The consequences of non-payment can be serious – the employer can be required to pay six years backdated pay and could face criminal charges if found to have wilfully neglected to pay the national minimum wage.