Hospitality workers’ rights during coronavirus pandemic
With the coronavirus pandemic forcing the hospitality industry to close its doors for the time being, fears have been raised over what it could mean for industry staff across Scotland.
Already, the Coylumbridge Hotel in Aviemore has come under fire for unfairly dismissing employees on the spot and telling them to leave their accommodation immediately. However, the company has since apologised and blamed an administrative error. Leisure chain G1 has also come under fire but has halted plans to make any staff redundant at this time.
With industry experts warning that every one of Scotland’s 250,000 hospitality and tourism jobs could be at risk, what will it mean for employed hospitality staff?
Our Employment Law specialist Priya Cunningham advises Scots on their rights.
Your rights as a hospitality worker during the coronavirus pandemic
An employment law contract is one of performance, so if the job cannot be carried out then strictly speaking the employee has no right to be paid.
However, this isn’t a situation where employees are refusing to show up to work because they are pulling a “sickie” to deal with a hangover. This is a unique situation that employers have never faced before and it is vital that they act reasonably towards their staff.
The Government is acutely aware of the fact that coronavirus has the potential to have a disastrous impact on the economy and the Chancellor, Rishi Sunak, has announced that the Government will be offering grants to cover 80% of employees’ salary, up to a total of £2,500. Support is also available for those who are self-employed, with new information being introduced each day. You can check out the latest Government guidance on the Gov.uk site.
If you are unfairly dismissed – let go without proper consultation – during this time, you will have the right to pursue an unfair work dismissal claim. Staff might be entitled to redundancy pay, notice pay, and outstanding holiday pay.
If a workplace with 20 or more staff closes without proper consultation, then staff might be entitled to additional compensation in the form of a protective award (see more information below).
With the Government measures in place there is really no reason for employees to be unfairly dismissed, however it is a sad fact that employers don’t always act reasonably or fairly. Any staff who are dismissed during this difficult period might also be entitled to bring a claim in the Employment Tribunal.
Unfair dismissal if you have more than two years’ service
Staff with two years’ service or more will be entitled to pursue an unfair dismissal claim in the Employment Tribunal in Scotland.
The Employment Tribunal can compensate the employee for the loss of earnings from the date of their dismissal up until the date that they find a new job. Part of the losses will be the equivalent of a statutory redundancy payment which is based on one weeks’ pay for each year of service; this is based on actual earnings and capped at £525per week.
The employee might also be able to pursue claims for the failure to pay notice pay, and any outstanding holiday pay that was accrued, but not used at the date of their dismissal. This would be in the form of an unlawful deduction of wages claim and employees can pursue this regardless of their length of service.
Unfair dismissal if you have less than two years’ service
Employees who do not have two years’ service are entitled to pursue an unlawful deduction of wages claim for any sums that were outstanding, but not paid to them at the date of their dismissal, including notice pay, accrued holiday pay and any wages or overtime payments that were due to them.
In circumstances where notice pay is due only, then the employee might have a claim for wrongful dismissal, which would allow the Employment Tribunal to order that their notice pay should be paid to them and make a declaration that you were wrongfully dismissed.
What is Protective Award Compensation and what compensation could I be entitled to?
Protective Award Compensation is a type of compensation awarded by an Employment Tribunal that offers up to 13 weeks’ pay in addition to other payments and is based on actual weekly earnings if you have not been informed or consulted before being made redundant.
If the employer has gone into administration then the Government’s Insolvency Service will make a payment of up to eight weeks’ worth of protective award, however this will be capped at £525 per week.
The Government’s Insolvency Service will also make payment of outstanding wages, notice pay and accrued holiday pay to employees who are dismissed by an employer who goes into Administration.
What are my employee rights now that the Government has announced a UK lockdown?
Employers should not use this as an opportunity to dismiss staff for no reason as the normal tests for considering whether a dismissal is fair or not will still apply.
With the Government support being offered to protect employees’ jobs, the employer will not be able to use Coronavirus as an umbrella excuse to cut their workforce. Also, employers who dismiss staff in response to any lock down that takes place are likely to have jumped the gun and an Employment Tribunal would likely be critical of such an approach.
What should I do if I’m unable to work from home during the lockdown?
There will be sectors where staff cannot work from home during the lockdown and these are where employees are most are risk of being unfairly dismissed. Employers will need to be able to seriously justify any action taken against employees in the event of a lock down. With the special measures in place from the Government, disruption to businesses should be minimised. However, this will only work effectively if employers use the help that the Government has offered correctly.
Is there a time limit for claiming via an employment tribunal?
Time limits are extremely short, and claims need to be processed within three months of the date of dismissal, or the incident that you are complaining of.
Employment law query?
Our overarching objective is to ensure employers can protect their workforce from the spread of Coronavirus, while also protecting the rights of employees. If you have an employment law query which relates to Coronavirus, we can assist you. For free advice, please get in touch with our team or contact me directly – Priya Cunningham.
Watermans is now offering a 20 per cent discount from all of our services to all NHS staff.