Looking after your hospitality staff in a post-pandemic era

Harrison Drury’s employment law team, outlines the key considerations that employers within the hospitality sector should make to ensure to protect both an employees’ rights as well as their health and wellbeing after the pandemic.

Covid-19 has undoubtedly had a large impact on all aspects our professional lives, which will be felt for some time to come. The hospitality sector, in particular, has been greatly affected with many businesses within the sector seeking a ‘new normal’ way of working.

There has been great speculation in the hospitality sector regarding the challenges to attract and recruit workers to meet increasing demand within this sector. But what has been given less coverage and consideration, is what focus and protection are employers giving towards workers who have remained working in the industry.

Be mindful of Working Time Regulations

In many hospitality businesses, there has been an increased demand and expectation on employees who were retained during the pandemic, and who are potentially still working longer hours than usual while businesses remain short-staffed. In this scenario, employers should be mindful of the rules set out in the Working Time Regulations 1998 (WTR 1998).

An employer’s main obligation under the WTR 1998 is to take all reasonable steps to protect its workers’ health and safety. An employer must therefore ensure each worker’s average working time (including overtime) does not exceed 48 hours per week.

However, many of the rights granted by the WTR 1998 can be waived or varied by an individual, the business’ workforce, or through a collective agreement. For example, individual workers have the right to ‘opt out’ of the 48-hour limit on average working time.

The importance of annual leave

In the UK, almost all workers are legally entitled to 5.6 weeks’ paid holiday a year (known as statutory leave entitlement or annual leave). This includes workers with irregular hours and workers on zero-hours contracts

However, the COVID-19 pandemic has impacted many workers’ ability to take annual leave. Research commissioned by Advisory, Conciliation and Arbitration Service (Acas) and published in July 2021 found that 39 per cent of employees took less paid time off work compared to before the COVID-19 pandemic.

Consequently, ACAS has highlighted the importance of time off work for employees and has advised, for the wellbeing of employees, that annual leave should be used within the current leave year wherever possible.

In 2020, the government introduced a law allowing employees and workers to carry over up to four weeks’ statutory paid annual leave into their next two ‘holiday leave’ years.

The new regulations enable workers to carry annual leave forward where the impact of coronavirus meant it was not reasonably practical to take the leave within year that it was allocated.

When calculating how much leave a worker can carry forward, employers must give workers the opportunity to take leave they cannot carry forward before the end of the current ‘holiday leave’ year.

When considering whether it was not reasonably practical for a worker to take leave, due to consequences relating to the pandemic, an employer should consider various factors:

• Whether the business has faced a significant increase in demand due to coronavirus that would reasonably require the worker to continue to be at work and cannot be met through alternative practical measures.
• The extent to which the business’ workforce has been disrupted by the coronavirus and the practical options available to the business to provide temporary cover of essential activities.
• The health and wellbeing of the worker and how soon they need to take a period of rest and relaxation.
• The length of time remaining in the worker’s leave year, to enable the worker to take leave at a later date within the leave year.
• The extent to which the worker taking leave would impact on wider society’s response to, and recovery from, the coronavirus situation.
• The ability of the remaining available workforce to provide cover for the worker taking leave.

It is important that employees take the time off that they are entitled to. Employers should do everything reasonably possible to ensure that workers are able to take as much of their leave as possible in the year to which it relates. In a particularly demanding and stressful industry, workers in the hospitality sector need a break to relax and unwind. In the long run, it will be beneficial to both the employees and the employer.

However, where leave is carried forward, it is best practice to give workers the opportunity to take annual leave at the earliest practical opportunity.

Protecting the wellbeing of your employees

The World Health Organisation (WHO) has warned that the need for mental health and psychosocial support is expected to “substantially increase in the coming months and years” in light of the anxieties, pressures and stresses related to the Covid-19 crisis. This is true for people both as individuals and as workers.

Given the challenges within the hospitality sector to recruit and retain employees – alongside the demands for venues to reopen fully to maximise capacity and thus profits – employers must be mindful of the mental stress that may place on employees.

UK health and safety legislation requires employers to ensure to be aware of and protect the health, safety, wellbeing and welfare of workers.

Within the legislation, there appears to be an emerging emphasis on mental health. As part of this awareness, The Health and Safety Executive (HSE) is promoting the need for employers to consider ‘psychosocial’ risk as part of the risk assessment which is undertaken to ensure a ‘Covid-secure’ workplace.

HSE recently launched the Working Minds campaign to help businesses recognise the signs of work-related stress and make tackling issues routine.

Employers owe a common law duty to employees to take reasonable care in respect of preventing foreseeable risks of harm. In fulfilling general health and safety obligations, hospitality businesses that have five or more employees are required by law to undertake an assessment of the risks employees may be exposed to at work and ensure to act on them. This includes the risk of work-related stress.

Taking measures to support employees

There are several measures that an employer could take to assist staff struggling under the burden of increased demand at work and reduced support. This includes providing additional training to deal with the unique circumstances of Covid-19 in the workplace.

Employers could also look to put in place support mechanisms and to create a culture where workers feel equipped to take on the distinctive challenges that Covid-19 has created for the hospitality sector.

This would also put employers in a good position in the face of an increased regulatory focus on workplace mental health by the Health and Safety Executive (HSE).

There is a wide range of both statutory and advisable steps an employer in the hospitality sector can take to help support its employees as the business adjusts to a post-pandemic era. To discuss these in further detail please contact Harrison Drury’s employment law team on 01772 258321.