Top Twelve for 2021

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Emma Campbell, corporate solicitor, listening to colleagues in a meeting

As 2021 draws to an end we’ve rounded up our top twelve Employment law FAQs for the year.

1) Can you dismiss an employee who is on long-term sick leave?

You can dismiss employees who are on long-term sick leave, however you must follow a fair process. This will include medical evidence. We always recommend early intervention in the case of sickness absence and seeking support from Occupational Health.

2) Is an employee ever entitled to carry over unused annual leave?

Yes. Employees have a legal right to carry over untaken annual leave if they’ve been unable to take it for certain reasons. Those reasons are;

– They’ve been on maternity or adoption leave or some other form of statutory parental leave;

– They’ve been on sick leave;

– They were unable to take leave due to the Covid-19 pandemic.

Note that with the exception of leave carried over as a result of Covid-19, employees have 18-months to take carried-over leave. In the case of a Covid-19 carry over they may spread the annual leave over the following 2 annual leave years.

If the above circumstances don’t apply, then the carry-over of leave is dependent on what you agree or what is detailed within the employee’s contract of employment.

3) How should you calculate holiday pay?

Under the Working Time Regulations 1998 employees should receive “a week’s pay” for a week’s leave. For employees with a fixed monthly salary this is as simple as paying them that fixed salary. However, it’s more complicated if your employees’ salaries fluctuate, either because they work irregular hours, or earn regular commission, bonus or overtime payments.

If pay fluctuates from month to month you must first calculate your employees’ average weekly pay (based on the last 52 weeks’) and then pro-rate this to the amount of annual leave they are taking.

4) Is it okay to use ‘fire and re-hire’ practices to force through changes to terms?

The use of ‘fire and re-hire’ tactics has been heavily criticised over the course of the pandemic, but they can be a lawful means of effecting changes to employee terms when used reasonably.

When you are seeking to change terms, you should consult with staff first to understand and allay any concerns. You must also be alive to any discrimination risks if a proposed change is likely to disproportionately impact groups with a protected characteristic. Consultation should lead to revised terms being accepted but if not and provided there is a business need for the change, you can serve notice to end the existing contract and offer the new terms. If the new terms aren’t accepted, there will be a dismissal for “some other substantial reason”. As with any dismissal, you need to ensure that you have acted fairly to avoid an unfair dismissal claim.

5) What constitutes working time for site-based employees?

In addition to time spent actually working it’s likely that travel time forms part of these individuals’ working time. This must be taken into consideration when paying such workers, particularly if they’re salaried as there is a risk that when these hours are accounted for, their pay falls below national minimum wage requirements.

We’ve reviewed many contracts for site-based workers and understand that it’s common for these individuals to have no ‘normal place of work’. However, travel to and from a normal place of work, such as an office or warehouse, is not classed as working time and is therefore a great way to minimise the risk above.

6) Can you ask about an employee’s vaccine status and keep a record of it?

Vaccine status is a form of special category data under the Data Protection Act. In order to process vaccine status, you must have an individual’s explicit consent and a lawful basis for processing. Consent forms and well drafted data protection policies are a must.

Although you can process this data, you must be careful to ensure that employees aren’t treated unfairly if they haven’t been vaccinated as this may be discriminatory depending on their reason for refusing the vaccine.

7) How many flexible working requests can an employee make in any 12-month period?

Subject to having at least 26 weeks’ continuous employment an employee is only entitled to make one flexible working request in any 12-month period.

8) On what grounds can you refuse a flexible working request?

There are a finite number of reasons that will justify the refusal of a flexible working request these are:

– the burden of additional costs;

– detrimental effect on ability to meet customer demand;

– inability to reorganise work among existing staff;

– inability to recruit additional staff;

– detrimental impact on quality;

– detrimental impact on performance;

– insufficiency of work during the periods the employee proposes to work; or

– planned structural changes.

You should not refuse a request just on the basis of a reasons above though, you will need to demonstrate why any of the above apply.

9) If an employee is signed off work after you commence a disciplinary or capability procedure, can you continue that process?

In short, yes. However, the process may take a little longer and depending on the reason for their absence you may need to consider making adjustments, for example:

– extending the right to a companion to their family member;

– offering to meet in a neutral place;

– arranging to have regular breaks; or

– offering for them to provide submissions in writing.

10) Are you still responsible for the health and safety of staff working from home?

Employers are responsible for ensuring a safe working environment for staff regardless of where they work.

If you’re introducing flexible working or homeworking on a permanent basis you need to ensure that staff have appropriate health and safety measures in place. We recommended discussing homeworking setups with staff and producing a risk assessment for each individual’s home environment.

11) If your employees discriminate against or harass another person (such as a colleague, client or, supplier), can you be held liable for their conduct?

You can. This is known as vicarious liability.

Under the Equality act 2010 employers can be vicariously liable for an employee’s discriminatory acts and must take reasonable steps to prevent discrimination and harassment in the workplace. If you don’t have equal opportunities training and an equal opportunities policy in place, it may be quite difficult to demonstrate that you have taken reasonable steps.

12) Can disciplinary or capability processes be used interchangeably?

No. Disciplinary and capability processes are distinct and designed to deal with very different employment issues.

A disciplinary matter should only be used to deal with an employee’s poor behaviour and conduct. A capability issue will arise where an employee lacks skills, training, or experience, or is too sick for a return to work to be feasible.

We like to say that capability processes are for when an employee can’t do what they’re being asked, and a disciplinary is for when they won’t.

(December 2021)