February’s TOP 5 HR Questions

1.What is an employee’s holiday entitlement if an extra bank holiday is granted one year?

If an extra bank holiday is announced to mark a particular occasion, for example a royal wedding or the Queen’s Platinum Jubilee, as we have been given this year, whether or not employees are entitled to an additional day’s holiday will depend on the wording of the employment contract. Employees do not have an automatic right to paid time off on a bank holiday.

If the employment contract states that the employee’s annual leave entitlement is a certain number of days plus bank holidays, they will be entitled to the additional day off. However, if the contract states that the entitlement is to a certain number of days, and is silent on the issue of bank holidays, the employee will not be entitled to an additional day’s leave. Neither will the employee be entitled to an extra day if entitlement is expressed as a certain number of days “plus eight bank holidays”, or if the contract specifies which bank holidays are included like Christmas day, Boxing day, May bank holiday etc.

Even where employees do not have a contractual entitlement to paid time off on the additional bank holiday, employers should consider providing this additional bank holiday as a gesture of goodwill, where possible, or providing time off in lieu if employees are required to work on that day. Employers that ignore the additional bank holiday this year, or don’t allow people the time off, whether paid or unpaid depending on the wording of their contract, should be prepared for a negative reaction from their employees.

2.Can we stop contractual sick pay to employees having to self -isolate of they are unvaccinated?

If you have stopped watching the news as so many people have these days, you may have missed this recent story in the press and social media. There are a number of companies such as Ikea, Next, Morrisons and Ocado who have withdrawn contractual sick pay for unvaccinated staff who have to isolate as a contact of someone with covid, limiting their pay to statutory sick pay (SSP) only for the isolation period.  There are also reports that many other companies will follow suit.

Ikea have reportedly been clear that they will make exceptions for those unvaccinated for good reason, presumably including medical reasons, and they have said each decision will be taken on a case by case basis, which is a sensible approach, and is to protect themselves from possible indirect discrimination claims if someone cannot be vaccinated due to disability or philosophical belief.

Employers thinking about implementing such a policy to withdraw company sick pay if they offer it to employees, should include safeguards but also, before making any changes, consider whether company sick pay is a contractual term, and it may be considered a contractual if custom and practice has meant people have been paid at full pay for all absences in the past.  If it is a contractual term, it can’t be changed unilaterally and full consultation is required.  Failure to do so could result in constructive dismissal claims.

All of these risks need to be weighed up and balanced against the cost of absence and employee relations challenges – do you upset the unvaccinated, or the vaccinated who are not happy that their unvaccinated colleagues are at home on full pay?  There are also GDPR considerations to factor it.

All in all, making changes might not be worth the risk, especially if all isolation rules are removed in the spring/summer as is rumoured!

3.What steps should an employer take where an employee is off sick for over a week but has not submitted a doctor’s certificate?

Most employers allow employees to self-certify their absence for the first seven days of sickness and require a doctor’s certificate now known as a fit note, only for longer absences. If an employee is absent without a fit note, where they been sick for more than seven days, the employer may be entitled to withhold either contractual sick pay or statutory sick pay (SSP), although there were temporary measures in place only until the 26th January 2022, due to the Covid Pandemic.

On 17 December 2021, the Government introduced regulations temporarily extending the timeframe for employees to provide medical evidence for the purposes of statutory sick pay, from seven to 28 days, which ended on the 26 January 2022.

Therefore, normal rules now apply again, and as an employer, you are entitled to require reasonable information to determine if the employee is entitled to SSP. An employer can accept alternative evidence of sickness (for example evidence of admission to hospital) and can decide to pay SSP if the employee has a good reason for not supplying a doctor’s certificate. However, if the employer is not satisfied that the employee is ill, and no evidence of their sickness is provided, it can withhold SSP. Evidence requirements for payment of contractual sick pay will depend on the terms of the employer’s sickness policy.

Initially the employer should attempt to make contact with the employee by telephone/text or email to find out why no fit note has been provided.

If this is unsuccessful, or the employer is not satisfied with the employee’s explanation, the employer should write to the employee setting out the sickness reporting requirements as dictated by its absence policy (if applicable), pointing out that sick pay may be withheld if no evidence is provided and that unauthorised absence could be a disciplinary matter, again depending on your disciplinary policy.

If the employee still does not provide certification, the employer can treat the absence as unauthorised and implement its disciplinary procedure.

4.Can an employer withdraw a job offer on receipt of a poor reference?

Yes, provided that the job offer is conditional on receipt of satisfactory references, the employer can withdraw the offer if it receives a poor reference, without this amounting to a breach of contract. Make sure that your offer letter includes the statement that your offer of employment is conditional upon the receipt of satisfactory references or any other requirements you may have such as the right to work in the UK, a satisfactory pre-employment health questionnaire, or a clean driving licence.

An employer that receives a poor reference may wish to investigate the situation further to satisfy itself that the individual is unsuitable and that it does not wish to employ them. If the employer decides to go ahead with the employment, it can make it clear to the employee that continued employment is subject to the satisfactory references being fully investigated.

5.What is the Employee Companion’s role at a disciplinary or grievance hearing?

Under s.10 of the Employment Relations Act 1999, the companion must be permitted to address the hearing in order to put the worker’s case, sum up the case and respond on the worker’s behalf to any view expressed at the hearing. They must also be permitted to confer with the worker during the hearing. However, the companion has no right to answer questions on behalf of the worker, to address the hearing if the worker does not wish them to do so, or to prevent the employer from explaining its case.

Do you get tied up in knots when it comes to making HR/People policy decisions? Worried that you don’t know enough about employment law? Or simply don’t have the time to deal with these sorts of issues? Then why not give us a call to discuss your HR headaches and see if we can ease the pain. You can book your FREE 30 minute call with us here