With estimates from the Office of National Statistics suggesting that Immigration to the UK from the EU is at its lowest level since 2013, hospitality businesses are bracing themselves for the very real possibility of staffing shortages over their busiest period.
While the future remains uncertain, according to one study, under any Brexit scenario, hospitality businesses can expect to lose an average of 23% of manual workers, with 11% of employers expecting to lose over a third of their workforce.
With this in mind, those within the sector will have to think long and hard about how they will cope with the impending numbers of people passing through their doors over the festive period. But what are your best options?
Here are some of the options available to employers when trying to balance supply and demand, and the essential things to be aware of from an employment law perspective.
1. Zero-hour contracts
Despite the controversy surrounding zero-hour contracts, they are often utilised by employers in order to cope with fluctuations in demand. A key advantage of these casual agreements is the flexibility they offer on both sides; they enable employers to pay for workers only when they are needed, and allow workers to turn down shifts and take up other work if they choose. This often appeals to those looking to earn an income without having to commit to long hours or a set schedule.
If you’re unable to guarantee an individual a set number of hours or a fixed working pattern, zero-hour contracts may be the way to go. However, employers must take care to avoid the common pitfall of assuming zero-hour contracts mean zero rights.
When engaging staff on any basis, employers must establish their employment status and what rights they are entitled to. In most cases, the nature of zero-hour arrangements means that the individual will be considered a ‘worker’, which comes with the following legal entitlements:
To be paid the National Minimum Wage/National Living Wage for their age.
To receive paid annual leave.
To not be discriminated against on the basis of sex, disability, religion, etc.
If you do choose to go down this route, it’s important to understand and abide by these legal provisions in order to avoid issues later on, such as costly claims for underpayment or discrimination.
In addition, you must make sure that you are not enforcing any exclusivity clauses. The law prohibits employers from incorporating any clause into a contract which seeks to prevent those on zero-hour contracts from undertaking work with another employer or restrict them from taking work elsewhere without the employer’s consent. If these provisions are included with a contract, they are unenforceable.
Our Employment Law specialists can offer expert advice on the repercussions of zero-hour contracts, as well as practical guidance on using them effectively within the confines of the law. For support, call 0345 226 8393.
2. Overtime
Alternatively, you may decide to have existing staff work overtime to meet the needs of the business.
If so, you must remember that:
You can only insist that employees work overtime if their Contract of Employment allows for this.
You do not have to pay staff for overtime, but you must ensure an employee's pay for all the hours they have worked doesn't fall below the minimum wage applicable for their age.
As per the Working Time Regulations, employees are not permitted to work more than an average of 48 hours per week, unless they agree in writing to opt out of this working week limit.
While overtime may seem like the most straightforward option when it comes to coping with busy periods, keep in mind that long hours may have a potentially detrimental impact on employees and, in turn, on your business. Significant effects of overworking include stress, fatigue and other physical health risks, as well as poor work-life balance, a lack of attentiveness, an increased risk of accidents and mistakes, and frustrations with the employment relationship. In this way, pushing staff to the brink through overtime may do more harm than good, resulting in higher turnover at a time when the business can ill afford such disruption.
3. Agency workers
Agency workers can also help a business to respond to a seasonal rush, offering a quick and effective way to hire skilled and qualified staff to fill difficult roles.
An agency worker is employed by a recruitment or employment agency. You pay the agency, who then pays the worker. It is the agency who has the responsibility to pay the worker appropriately and ensure that their rights are upheld.
However, you still have a duty to:
Provide them with a safe working environment.
Notify the agency of your employment terms and conditions to ensure that the worker receives equal treatment after the 12-week qualifying period.
4. Fixed-term contracts
Fixed-term contracts are another fantastic way to get some additional help; however, many employers are unaware that fixed-term employees have a lot more rights and protections than they may first realise, which can lead to some nasty surprises and significant liability.
Fixed-term employees have the right to not to be treated less favourably than comparable permanent employees. Additionally, they cannot be subject to any detriment by their employer due to the fact they are on a fixed-term contract.
For instance, it would not be permissible to offer permanent employees training opportunities while not presenting the same opportunities to fixed-term employees.
Further, it is important to note that the non-renewal of a fixed-term contract constitutes a dismissal in law. This means that an employee may be able to claim unfair dismissal if they have over two years’ service, and may succeed in their claim if they can show that the employer:
- Did not have a fair reason for not renewing their contract; or
- Failed to follow a fair procedure.
Professional advice at any time
Ellis Whittam provides specialist Employment Law and HR support to hospitality businesses of all shapes and sizes, helping them to operate compliantly and overcome challenges quickly. Our personalised fixed-fee service includes as much advice and guidance as you require from a dedicated professional on a daily basis, plus expert drafting of all contracts for different categories of worker. Our aim is to help you ensure the stability of your team and focus on running your business without distraction, which is especially important during the Christmas period.
