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The Working Time Regulations 1998 specify that, when calculating a week’s pay for the purposes of holiday pay, employers should include overtime payments that have been regularly paid to the worker in the previous 52 weeks.

Regular overtime must be included regardless of whether the employer is contractually obliged to offer it, or the employee is required to work it. There is no definition setting out how regularly overtime must be paid for it to be included. 

The right to be paid for regular overtime in holiday pay applies only to holiday pay for the four weeks’ minimum annual leave under reg.13 of the Working Time Regulations 1998, not to the additional 1.6 weeks under reg.13A. Employers should decide their policy on how to treat the additional 1.6 weeks’ statutory minimum leave and any additional contractual entitlement, but may decide to include pay for overtime in all holiday pay to avoid complicating the administration of payments.

The right to be paid for regular overtime also applies to all accrued annual leave for irregular hours and part-year workers under reg.15(B) of the Regulations.

If an employee fails to attend work and does not contact the employer to explain, the employer should make reasonable efforts to contact them. The employer’s first concern should be the employee’s wellbeing, particularly where they are usually reliable, as the lack of contact could indicate that there is a problem (for example a family emergency or accident). It may be appropriate to try to contact the employee’s next of kin if repeated attempts to contact the employee fail.

The employer should keep a record of all the attempts that it makes to contact the employee.

Once the employer has made contact with the employee, or they return to work, the employer should investigate the reason for their absence.

If there is a legitimate reason such as dealing with a family emergency, and the employee has informed the employer as soon as possible, this could be covered by the statutory right to time off for dependants. In this case, it would not count as unauthorised absence.

Depending on the outcome of the investigation, it may be appropriate to begin a disciplinary process.

While employers need to be consistent, fair and non-discriminatory in how they deal with unauthorised absence, the level of action that is appropriate will depend on the circumstances of the case. For example, a one-off incident where the employee forgets they were supposed to be working a particular shift would normally be treated differently to an employee who goes AWOL for a prolonged period without a good explanation.

An employer’s obligation to part-time workers must be considered in light of the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551), under which part-time workers are entitled to the same terms as comparable full-time workers, but on a pro rata basis.

The employer must ensure that a part-time employee receives their pro rated entitlement if bank holidays are included in the employee’s statutory minimum holiday entitlement, or if the employer grants an entitlement that exceeds the statutory minimum to its full-time workers.

To avoid treating a part-time employee less favourably than full-time employees, the employer should look at how many bank holidays the part-time employee will benefit from in light of the days of the week they work. If this results in a shortfall in the part-time employee’s entitlement to bank holidays, the employer should allow them additional holiday in lieu to take at another time.

Part-time or shift-working employees who do not normally work on Mondays (when most bank holidays fall) would not benefit from as many bank holidays as other employees if they are not allowed time off in lieu. The decision in McMenemy v Capita Business Services Limited [2007] IRLR 400 CS suggests that, where an employer operates a seven-day-a-week business where full-time employees who do not work on Mondays also lose out on bank holidays, it is lawful for part-time employees to be treated the same way. However, for employers that operate a five-day-a-week business, it would be only part-time employees who would lose out on bank holidays, resulting in less favourable treatment, which could be unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000. It is therefore safer to follow the approach of giving part-time employees a pro rated allowance for paid bank holidays, irrespective of whether or not they normally work on the days on which bank holidays fall.

The employer should take care not to make unsubstantiated assumptions about an employee whom it suspects is under the influence of alcohol and should keep in mind that there may be other medical reasons for their behaviour. However, it will also be very important for it to take precautions to prevent any potential danger to the health and safety of the employee and their colleagues.

If the employer has ready access to an occupational health specialist, the employee could be asked to see them straight away. They could be asked to agree to be tested for alcohol, if such a test is available. If this is not possible, the manager concerned should seek the opinion of an HR manager or another senior person to support the manager’s suspicions that the employee is in fact under the influence of alcohol. A record of their observations should be made.

The most appropriate course of action will then often be to suspend the employee. This should be with full pay (unless the influence of alcohol has been confirmed and the contract of employment specifies that suspension in these circumstances may be unpaid). The employee’s manager should ensure that the employee is not permitted to drive.

Following an investigation, which should typically take one or two days, the employer should invite the employee to attend an investigatory interview to establish their version of events. Depending on the outcome of the investigation, disciplinary action may follow. The employer should follow any provisions of its disciplinary procedure that relate specifically to working under the influence of alcohol. If it is established through investigations that the employee has an alcohol addiction, the employer may, depending on its policies and procedures, offer a programme of support.

It is important as part of a fair and reasonable redundancy procedure for an employer to consider whether it, or any associated employer, has any vacancies that would be suitable for employees who would otherwise be made redundant. There is no obligation on the employer to create new jobs for redundant employees, but failure to offer any available suitable alternative employment may make a dismissal by reason of redundancy unfair.

Where an employee’s contract is renewed, or they are re-engaged under a new contract in pursuance of an offer made before the end of the employment under the previous contract, and the renewal or re-engagement takes effect either immediately on, or within four weeks of, the end of the previous employment, there will be no redundancy dismissal.

In addition to the requirement to consider alternative employment as part of a fair redundancy procedure, employers must comply with the separate duty to offer any suitable alternative vacancy to an employee who is pregnant; on maternity leave, adoption leave, shared parental leave or neonatal care leave; or recently returned from family leave, when the redundancy occurs.