When can your employer lay you off or put you on short-time working?

Redmans Solicitors
September 20, 2013

In situations where your employer may anticipate a seasonal, regular or temporary drop in the amount of work available (seasonal industries such as tourism or where, for example, a restaurant or hotel is being temporarily refurbished) then employers may seek to put their staff on short-time working or lay them off temporarily instead of making them redundant. In this article Chris Hadrill, an employment solicitor at Redmans, takes a look at when your employer is entitled to put their employees on short-time working or lay them off, whether your employer is entitled to put you on short-time working or lay you off, and what you can do if you think that you’ve been unlawfully put on short-time working time or laid off. We’ll do so by examining the following:

When is an employer legally entitled to put an employee on short-time working or lay them off
Is your employer entitled to put you on short-time working or lay you off?
What can you do if you think you’ve been put on short-time working or laid off unlawfully?

When is an employer legally entitled to put an employee on short-time working or lay them off

In order for an employer to be legally entitled to put an employee on short-time working or lay them off temporarily there must be either an express term in the contract of employment stating this or there must be a term in the contract implied by custom and practice. It is generally pretty clear as to whether you have an express term in your contract of employment stating whether your employer has a right to put you on short-time working or lay you off but whether there is an implied term (if there is not an express term) is slightly more complicated. In order for a term relating to entitlement to put you on short-time working or lay you off to be implied into your contract of employment the following strict two-fold test must be met:

There must be a custom of laying-off in that particular business; and
The custom must be both reasonable, certain and notorious; and such that no workman could be supposed to have entered into their employment without looking to it as part of the contract

As above, this is a strict test and most employers would be well-advised not to rely on the potential existence of an implied term if they anticipate potentially having to put their employees on short-time working.

Is your employer entitled to put you on short-time working or lay you off?

This really depends on the situation. What you can do if you are being put on short-time working or being laid off is (among others):

Check your contract of employment for an express term relating to short-time working or being laid off
Check your staff handbook for a similar term
Examine whether your employer has had to put staff on short-time working or lay them off before and, if so, how regularly this happens
Consider whether you expected to be put on short-time working or laid off when you entered into the employment relationship

What can you do if you think you’ve been put on short-time working or laid off unlawfully?

If you think that you’ve unlawfully been put on short-time working or laid off then you should follow the above steps so that you can consider whether your actions have in fact been lawful. File a grievance with your employer if you think it is unlawful and, if this grievance is unsuccessful, you may wish to consider consulting an employment law solicitor to obtain employment law advice what your options are in your particular circumstances.

Chris Hadrill is an employment law solicitor at Redmans, a specialist firm of employment solicitors in Richmond London