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The Employment Relationship: Hours, Holidays & Sickness

Hours

Regulations set a maximum number of weekly working hours for employees (48 hours on average over a 17 week reference period). However, the maximum working week does not apply to all employees and employees may also voluntarily opt out of the limit. Night workers have additional protection including more breaks and tighter limits on working hours.

Even if an employee opts out of the limit on maximum weekly working hours, employers should ensure that their employees are able to take daily and weekly rest periods. The amount of designated rest time will depend on whether the employee is an “adult worker” or a “young worker”.

Holidays

All workers have the statutory right to a minimum of 5.6 weeks’ paid annual leave (equivalent to 28 days for a full-time employee). Paid time off on public and bank holidays (of which there are usually eight in the UK) can be counted towards this entitlement.

UK case law has established that overtime and certain bonus and commission payments, averaged over an appropriate reference period, must be included in the calculation of holiday pay. Where these elements are not factored into holiday pay calculations, employees may be able to bring claims for unlawful deductions from wages for up to two previous years of underpaid holiday pay. Specific advice should be sought on this subject as it is a complex area.

Employers may not pay their employees in lieu of their statutory annual leave entitlement except on termination of employment, when a payment must be made in lieu of any accrued but untaken leave.

Sickness

If an employee is unwell and cannot work, they will be entitled to statutory sick pay (“SSP“) provided they meet the eligibility requirements. Some employees will not qualify for SSP based on their earnings, but they may qualify for other state sickness benefits.

SSP is not payable for the first three days of a period of incapacity for work and is only payable for “qualifying days”, which are usually the days on which the employee would normally be required to work.

The employee must provide the employer with proof that they are too unwell to work. Typically this will take the form of a “self-certification” for the first week and a “statement of fitness for work” from their doctor for absences of over seven days.

The rate of SSP is reviewed by the Government each year and is currently (2020/2021) £95.85 a week; income tax and national insurance contributions should be deducted by the employer from SSP. Employers used to be able to recover the cost of SSP from the government but can no longer do so (except in certain limited circumstances related to the COVID-19 pandemic).

Some employers choose to enhance SSP and set out in their employment contracts that employees will receive their usual pay for a specified number of days, weeks or indeed months of sickness absence in a rolling 12 month period.

Equality legislation prohibits several forms of discrimination related to disability and places employers under a positive duty to make “reasonable adjustments” to eliminate disadvantages suffered by disabled employees related to work / the workplace. The handling of regular / long term sickness absence requires careful consideration of disability discrimination risks.