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ARTICLE ORIGINALLY PUBLISHED JULY 2015

“And the Rest of the Time the Staff Come to Work”

We all know full time staff are entitled to a minimum of 28 paid days off work for their annual holidays and this salary cost is easily assessed. It is easy to forget that paid holidays only became a legal entitlement in 1998. Employers quickly moved onto looking at ways of reducing the impact of holidays, by for example specifying when staff can and can’t book holidays and fixing when some leave must be taken, and having strict controls regarding booking leave.

But throughout their working career there are many other reasons why staff will not be at work quite legitimately. Most employers may be lucky and hardly affected. If you were very unlucky you might have an employee affected by all of the following provision. It’s highly unlikely but knowing what rights exist is the first step.

In this article I will clarify the areas where staff have a legal entitlement to be absent

Working Hours and Rest

Salon staff must have at least one day off a week or 2 days per fortnight. For workers under 18 it is 2 days a week and these days should be consecutive. In addition staff must have breaks, a 20 minutes minimum for adult workers (after 6 hours) and 30 minutes for under 18’s (after 4.5 hours). You do not have to pay for these breaks. Of course breaks can be longer, and can even be paid, but all options involve costs. Just consider a 30 minute paid break each day over 5 days would cost the employer £847. The law only requires one break, it isn’t a break every 6 hours.

Finally, whilst an opt out exists, staff can legitimately request a maximum 48 hour working week. For under 18s there is no opt out from the 40 hour maximum working week

Sickness

Another obvious area where staff will not attend work is sickness. Few things cause more anxiety and irritation than the phone call 10 minutes before an employee’s due to start saying that they have a cold.

Persistent absenteeism is easily managed through your disciplinary procedure and/or an absence policy. But inevitably, in their working life, staff will have some time off for sickness. Staff can receive up to 28 weeks SSP over a three year period. The entitlement to SSP begins on day 1 of their employment. Salon owners tell me short term absenteeism is a real issue but few reward 100% attendance.

Maternity, Paternity, Shared Parental, Adoption leave and Ordinary Parental Leave

We know a large majority of salon based staff are female so pregnancy is just a fact of life. Apart from their maternity leave there are other entitlements:

  • Pregnant employees are entitled to paid time off for ante natal appointment
  • More recently dads are now also entitled to UNPAID leave to attend two ante natal appointments with their partner
  • Staff are entitled to maternity leave (or shared parental leave) of up to 12 months
  • Adoption leave rules are similar to those for pregnant staff
  • Partners can now even share the maternity leave with the mother
  • Staff on maternity leave can work in the salon for 10 days and be paid on top of their maternity pay ( 20 days for shared parental leave)—this is potentially very helpful for salon owners.

I won’t go through all of the rules relating to the above but Salon owners should have an understanding of them. For example, under Ordinary Parental leave (known as Parental leave until April 2015) a parent can request unpaid parental leave, as long as they give 21 days notice. The entitlement is up to 18 weeks per child up to their 18th birthday. It hasn’t been frequently requested in my experience, mainly because it’s unpaid.

Redundancy

Once employees are put at risk of redundancy they are entitled to paid time off to attend interviews for alternative employment.

Unpaid time off

The following are less likely to occur but you need to know “just in case” all are normally unpaid unless you, as the employer, decide to paid, the important thing to note is that the employee has a legal right to time off. I must emphasise the importance of being consistent and therefore a written policy must be an assistance

  • Trade union membership is rare in the industry but staff are entitled to participate in trade union activities
  • to perform ‘public duties’, for example, being a JP, local authority councillor or school governor
  • to attend to unexpected problems/emergencies with dependants, for example, where child minding arrangements break down or a child has an accident at school. This doesn’t mean the parent can routinely take time off if their children are sick .The clue is in the wording which refers to unexpected problems. In addition the guidance refers to the parent taking time off to put alternative arrangements in place so typically you would only expect the absence to be one or two days.

Training

Apprentices should be paid for training linked to their apprenticeship training. An employer recently fell foul of the National Minimum Wage rules when it was found their apprentice hadn’t been paid for attending two modules in the evening at college. Typically employees are paid for attending work specific training events, even on their day off. Options might be giving time off in lieu. I am aware that some salons don’t give payment but I believe this is a risk unless it is clear the training is voluntary.

I Don’t Like Sundays

All salon workers can opt out of Sunday working unless Sunday is the only day they have been employed to work on. In fact staff can opt out of Sunday working at any time, even if they have agreed to work on Sundays in their contract.

The employee must give their employer 3 months’ notice that they want to opt out of Sunday working. They must continue to work on Sundays during the 3 month notice period if their employer wants them to.

An employer who needs staff to work on Sundays must tell them in writing that they can opt out. They must do this within 2 months of the person starting work - if they don’t, only 1 months’ notice is needed to opt out.

Flexible Working

Since July 2014 all employees with at least 26 weeks service has been entitled to ask for flexible hours working. It used to be limited to mums and carers In my mind it’s better for the employer to be aware an employee has an interest in changing their hours than previously when only parents or carers could apply. If someone would like Tuesdays off to pursue their interest in pottery then fine. There is lots of evidence that having flexible working or the ability to work flexibly pretty is near the top of an employees’ wish list when looking at an employer. It isn’t easy and time away from work can be seen as lost income but retaining and attracting staff is equally important

  • Requests should be in writing stating the date of the request and whether any previous application has been made and the date of that application.
  • Requests and appeals must be considered and decided upon within three months of the receipt of the request.
  • Employers must have a sound business reason for rejecting any request.
  • Employees can only make one request in any 12 month period.

Obviously employers want to retain good staff and most will handle requests sensitively

An employee can complain to an employment tribunal under certain circumstances. For example, if you are a woman, you may be able to make a claim on the basis that refusing to allow you to work flexibly is 'potentially sex discrimination'.

Jury Service

Another bolt from the blue is jury service. Typically people are called for jury service for 2 weeks but it can be longer. It isn’t necessary to pay staff but employers complete a loss of earnings form for their employee. There are exemptions but it’s rare for a salon based employee to be let off, it is much more likely if you are a hospital surgeon. But you can apply for an exemption subject to the following rules

You may be able to delay jury service, eg if you:

  • have a holiday booked
  • are having an operation

But you can only defer once and the second time might be even more inconvenient

If you defer you must say when you will be available for jury service over the next 12 months.

You may need to prove you have a genuine reason if you say you won’t be available at any time during this period, eg a letter from your doctor

I did know a client who gained an exemption as 2 of their three therapists were on maternity and they felt the jury service might threaten the viability of their business

Reservists

Finally and least likely you might have an employee who wants to be a forces reservist. They must inform you and get your written consent before they apply. By law, you do not have to allow your employee to take time off for training. If the employee is mobilised, they will be paid by the Ministry of Defence, therefore you do not have to pay an employee while they're away on duty. Also small and medium-sized businesses can claim financial compensation if an employee is mobilised.



David Wright Personnel

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