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Matthew Whelan

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Ask the expert: Sending home without pay

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An employer has a clause which states that staff who are late for a shift, resulting in cover being brought in, will be sent home and not paid. Matthew Whelan and Esther Smith advise whether this is legal.

The question

 

We are currently reviewing our disciplinary rules and we have a clause which states that if an employee arrives more than an hour late for their shift without informing us, and someone else has to be brought in to cover the shift, they will be sent home and not paid. Is this legal and what other options can we use? This applies mainly to casual/part-time staff.    
 

Legal advice

 

Matthew Whelan, solicitor, Speechly Bircham

 
There are a number of considerations to take into account when looking at whether you can rely on this right.
 
If you do not have a right to do this under the terms of your contract with the employee, then to do so may well be an unlawful deduction from wages (which is a straightforward claim for an employee to bring and is often difficult to defend). You mention that this right is set out in the disciplinary rules. To be effective for this purpose, those rules would need to be properly incorporated into the employee’s contract (which generally handbooks should not be but sometimes parts of them, like disciplinary rules, are). This right must be set out very clearly. The position may be different for staff that do not have guaranteed hours and do not have a right to be paid if they are not working – this may include casual staff.
 
Even if you do have this right there are other issues to consider. You need to be careful not to unlawfully discriminate in exercising this right. If someone is late due to childcare responsibilities, to not pay them (and/or to discipline them) may be discriminatory.  Similarly, you need to think about disability discrimination if someone cannot get into work on time because of their disability. You mention that this applies mainly to part-time staff. This could be problematic as part-time staff have certain protection against less favourable treatment.
 
You will also probably need to follow a fair procedure before you decide to not pay the employee. If this is a disciplinary penalty (which it probably would be particularly as the right is contained in the disciplinary rules) then you should observe the ACAS Code of Practice. If you do not then the employee could receive an uplift of up to 25% in some types of compensation (including for unlawful deduction from wages and, if it leads to a dismissal, for unfair dismissal).
 
One possible alternative to the deduction in pay is to treat it as a disciplinary issue (and give warnings to improve etc).  You would need then to follow a fair procedure taking into account, for example, the ACAS Code of Practice. 
 
Matthew Whelan can be contacted at [email protected]. For further information, please visitwww.speechlys.com.
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Esther Smith, partner, Thomas Eggar

 
This can be legal if it is expressly provided for in your contractual documents and is implemented fairly and consistently across the organisation.  If you do wish to retain this policy you should document it fully and take active steps to make sure all of your employees are fully aware of the rule and its application.
 
You do need to be careful that this rule is operated consistently, and there is also a slight risk that someone may try to raise a claim that this rule has a disproportionate impact on them due to some ground which is protected under the discrimination legislation (e.g. "I suffer from a disability that means that I am more likely than a non-disabled person to attend late, and therefore this rule has a disproportionate impact on me").  However, this is going to be a difficult argument to run.
 

The downside of using this policy is obviously that you are, to a certain extent, cutting off your nose to spite your face, as you loose the man hours for the whole day. Whilst this may be countered by saving the salary cost, it may be better operationally to simply withhold pay for the period for which the employee was late, and also to use the disciplinary procedure to sanction the poor timekeeping. 

   

 
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visitwww.thomaseggar.com.
 
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