CONTRACTS - 14.04.2021

A temporary “act up” or a permanent promotion?

You need an employee to temporarily act up to a more senior position due to another member of staff being absent. If this arrangement goes on for several months, could the employee argue that it’s actually a permanent promotion?

Reasons to act up

There are many reasons why you might need an employee to temporarily act up into a more senior position.

For example, they could be covering for a supervisor or line manager who is off sick, on holiday, taking maternity or another type of leave.

Length of time

In some cases, you might only need an employee to act up into a more senior role for a few days, but it’s also possible that the arrangement could go on for longer or need to be open-ended.

An open-ended arrangement could arise where it is unclear when the more senior employee will return, e.g. because they have become seriously unwell.

A permanent promotion?

Where the act up is only for a short period of time, say a few days or weeks, it’s unlikely that an employee will attempt to argue that this amounts to a permanent promotion.

However, if the act up arrangement goes on for a few months, or it later becomes apparent that the person the employee is deputising for isn’t going to return, they may well argue that the arrangement is a permanent promotion.

Protect yourself

If there’s nothing in writing, it’s possible that the employee could convince the tribunal that the act up arrangement has become a custom and practice over time.

In the event that they’ve carried out all of the more senior job duties and you’ve paid them the rate of pay for the more senior role, they may well have a strong argument.

Tip. However, any claim that there’s been a permanent promotion will be a non-starter if you have a written agreement in place which makes it clear that the act up is temporary regardless of how long it lasts (see The next step ).

Voluntary agreement

You can’t force an employee to act up into a more senior role, this should always be their choice. If they do agree, the employee must also have the option of stepping back down but you can require them to give you notice of this so you can make alternative arrangements.

As you might expect, most employees will refuse to act up if they won’t receive any extra payment, so it’s best to offer them something.

Tip. You don’t have to pay them the full salary of the more senior role they are temporarily taking on, but you could make a one-off payment. This should be paid when they step down, not when they start.

Tip. Alternatively, you could increase their pay to, say, the mid-point between their normal salary and that of the other job role.

For a deputising clause, visit https://www.tips-and-advice.co.uk , Download Zone, year 23, issue 08.

Providing there’s a written agreement which makes it clear that the act up is temporary regardless of how long it lasts, the employee won’t be able to argue that it’s become a permanent position. You don’t have to pay an employee who agrees to act up the salary of the more senior job role, but they should be given some additional payment.


The next step


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