Royal household staff balloted for industrial action
It may be difficult to understand why an employee would ever agree to work for free, but it can be attractive to those looking to expand their skills or experience, or to strengthen their case for promotion.
However, giving staff the option of doing additional work-related activities without additional pay is potentially a grey area in employment law. While on the face of it this seems like an almost ‘too good to be true’ situation for employers, on closer inspection this sort of arrangement can lead to a whole host of issues.
The current situation at Windsor Castle is a recent example of where this can cause problems for an employer.
The royal residence is embroiled in a pay dispute with the Public and Commercial Services (PCS) union over additional duties that staff may choose to carry out. These activities include giving tours and acting as interpreters for visitors. The Royal Collection Trust, the charity that runs the Queen’s residences, argues that these additional duties are entirely voluntary and that they enable staff to receive training and develop their skills. However, a major tourist attraction such as Windsor Castle must need these services for the proper running of its business, so it’s strange that staff are not required to perform them.
The trade union is arguing that a previous pay deal was agreed on the basis that staff would receive an additional allowance for these extra duties. The difficulty the employer now has is that because these activities are voluntary, there is no contractual basis on which it can require staff to carry them out. The union is balloting its members at the castle on whether staff should refuse to assist with those extra duties.
It looks as though Windsor Castle is paying the price for its failure to incorporate these additional duties into its employment contracts. If there is any kind of compulsion for staff to carry out duties not expressly set out in their employment contract, there is a strong possibility that those duties will become contractual by custom and practice. An employment contract isn’t just the piece of paper employees receive at the start of their employment; it includes all agreed employment terms, whether they are expressly stated or implied.
If the additional duties are contractual on that basis, then any time spent working on them would be working time. This means that employers will need to ensure that staff are receiving at least the national minimum wage for those hours worked.
Employers also need to remember the potential impact on employee engagement in situations like this. If staff are begrudgingly carrying out additional duties, they are unlikely to be performing them to a high standard. It’s easy for an employer to show breach of contract where a job isn’t being carried out, but much harder to do so when it’s merely being carried out badly.
There are several points for employers to take into account when considering whether staff should be asked to perform additional duties. If the duties are key to the running of the business, they should be expressly included in the employment contract – ideally from the outset as it is far more difficult to introduce new contractual duties during the employment relationship. If the duties are not so important to the business, and are intended to be voluntary, employers should ensure there is no obligation of any kind on the staff to carry them out.
The key point for employers is that they can only compel staff to perform services that they’re actually employed (and being paid) to carry out. It looks like this is a lesson that this particular employer is going to have to learn the hard way.
Andrew Crudge is an associate at law firm Thomas Eggar
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