March’s TOP 5 HR Questions

1.What should the employer do if an employee is reluctant to return to work as the coronavirus restrictions are lifted?

Employers should recognise that many people will naturally be nervous about attending work and increasing their risk of contracting coronavirus (COVID-19). If an employee is reluctant to return to the workplace, the employer should explore their reasons and try to address any specific concerns they have, taking their individual circumstances into account.

The Governments of Northern Ireland, Scotland and Wales have continued to encourage employers to support employees to work from home to some extent, where this is possible. In England, the working from home guidance has been lifted from 19 January 2022.

An employer should ask employees to attend the workplace only once it has taken all reasonably practicable steps to reduce the risks from coronavirus. Employers should communicate clearly with employees about the measures that have been put in place.

If an employee is reluctant to attend the workplace because they have health concerns that make them vulnerable from coronavirus, the employer should discuss alternatives with them, taking into account the duty to make reasonable adjustments, which is likely to apply in many cases.

If an employee has concerns about using public transport to get to work, the employer should discuss with them if there are options to allow them to travel at a quieter time, by changing their start time for example. The employer must comply with the duty of mutual trust and confidence, and so should consider if it is fair and reasonable to expect the employee to use public transport. The fact that some employees are prepared to use public transport does not necessarily mean that it is reasonable to expect others to do the same.

Where it is possible for the employee to carry out the work from home, the employer should consider whether it is genuinely necessary for them to attend the workplace. Employers should follow the government guidance and support employees to work from home if they can.

The employer must ensure that it is acting reasonably in requiring the employee to return, or it risks a claim of constructive dismissal. It should also be aware of the potential risk of discrimination, eg on grounds of disability or sex, depending on the employee’s circumstances.

If the employer is confident that it is reasonable to instruct the employee to attend work, after putting in place measures to control the risks and exploring the employee’s individual circumstances, the employer must consider its options. Where employees cannot work from home, one option is to ask the employee to agree to a period of unpaid leave. If they do not agree to this, the employer may decide to withhold their pay in any event. Ultimately, the employer has the option of taking disciplinary action leading to dismissal.

2.Where an employee resigns but does not work the required notice period, must the employer pay them for this period?

Whether an employer must pay an employee for the notice period if they do not work it depends on the reason for them not working it!

In the absence of any agreement to waive the notice requirement, an employee who refuses to work the notice period required by their contract of employment will, technically, be in breach of contract. In these circumstances, there will be no duty on the employer to pay the employee for any part of the notice period not worked.

If, on the other hand, the reason for the employee’s resignation was a fundamental breach of contract on the part of the employer, such as not meeting their Health and Safety obligations for example, then the employee would be entitled to leave without notice. Again, the employer would not be obliged to pay for any part of the notice period that had not been worked, although they may be liable for compensation for the employee for the breach of contract.

If the employee does not work their full notice on account of agreed absence on holiday, then the employee will be entitled to be paid their normal contractual level of pay during the notice period. Similarly, if the employee was unable to come to work during the notice period because of sickness, they would be entitled to be paid statutory or contractual sick pay in the same way as an employee who had not resigned.

Finally, it is open to the employer and employee to mutually agree to waive the notice period, i.e to bring forward the employee’s termination date. In these circumstances, the employer should make sure that the employee signs an agreement to this effect so that there can be no claim at a later date for unpaid wages.

3.When does overtime have to be included in holiday pay?

Holiday pay must be calculated on the basis of the employee’s normal pay. Where an employee normally works overtime, this should be included in the calculation of their holiday pay.

Overtime that the employer is contractually obliged to offer and that employees are required to work must always be included in holiday pay. In Bear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others [2015] IRLR 15 EAT, the Employment Appeal Tribunal (EAT) held that regular overtime that is not guaranteed, but that employees are required to work when it is offered, must also be included.

There is no definition setting out how regularly overtime must be worked for it to be included, but the general principle is that pay that is “normally received” should be included when calculating holiday pay. If an employee has worked a settled pattern of overtime over a period of time, payment for that overtime is pay that they normally receive and must therefore be included in holiday pay. Where there is no settled pattern of overtime, the employer should calculate average pay over a reference period leading up to the period of annual leave, although the courts have not addressed what a suitable reference period would be. We have advised our clients that a 52 week period is sensible.

The Court of Appeal addressed the question of whether or not overtime that is voluntary must be included in the calculation of holiday pay in East of England Ambulance Service NHS Trust v Flowers and others [2019] IRLR 798 CA. It held that voluntary overtime must be included if it is part of a pattern of work that is sufficiently regular and settled for payments made in respect of it to amount to normal remuneration. This will be for tribunals to decide on the facts of each case.

The right to be paid for non-guaranteed overtime in holiday pay derives from case law of the European Court of Justice, and so applies only to holiday pay for the four weeks’ minimum annual leave under EU law, not to the additional 1.6 weeks provided for by the Working Time Regulations 1998 (SI 1998/1833). Employers should decide their policy on how to treat the additional 1.6 weeks’ statutory minimum leave and any additional contractual entitlement, but may decide to include pay for overtime in all holiday pay to avoid complicating the administration of payments.

4.Must an employer disclose notes and witness statements produced during a grievance or disciplinary procedure if an employee requests them?

Employees have the right under the UK General Data Protection Regulation (retained from EU Regulation 2016/679 EU) to request access to information about them that is held on file, whether manually or on computer. For example, an employee who has raised a grievance and is not satisfied with the outcome may request copies of the written evidence on which the decision was made, including statements obtained from witnesses; or an employee about whom a grievance has been made may request evidence relating to the complaint.

The employer can refuse to disclose the document in question if its disclosure would also reveal information about a third party who can be identified from the information, unless the third party has consented to the disclosure or it is reasonable in all the circumstances to comply with the request without their consent.

The employer should not automatically refuse to disclose a document if a third party, for example a colleague who has given a witness statement, does not consent to it being released. The employer should consider taking steps to anonymise the document before disclosing it. This might involve:

  • blanking out the witness’s name and any other information from which they could be identified;
  • editing the statement to conceal the identity of the witness; or
  • where there are several witness statements from different employees, preparing a summary of the information contained in the statements.

Ultimately, the employer should take a reasoned decision about whether or not it would be reasonable in the circumstances to disclose a witness statement or other document. This will involve balancing the witness’s right to privacy against the employee’s right to know what information is held about them, and its source.

Where a disciplinary investigation results in the decision to proceed to a disciplinary hearing, the employer should provide the employee with copies of any witness statements and other written evidence that will be referred to in the hearing. The employee has the right to know the case against them and to be able to challenge it, so evidence should be anonymised or withheld only where there is a strong reason for doing so.

The Acas code of practice on disciplinary and grievance procedures, which is taken into account in relevant tribunal proceedings, states that it would normally be appropriate to provide the employee with copies of any written evidence with the notification of the disciplinary hearing. The non-statutory guide that accompanies the code states that the employer should give copies of any meeting records to the employee, but states that protecting a witness is an example of a circumstance in which withholding information may be appropriate.

5.Should an employer deal with an employee’s poor performance through its disciplinary or capability procedure?

Whether an employer should deal with an employee’s poor performance through its disciplinary or capability procedure will depend on the nature of the poor performance. The employer will initially need to carry out an investigation, which will include meeting with the employee concerned, to establish whether the employee’s poor performance is conduct or capability related. If it is conduct related (ie the employee has some control over their actions), it is appropriate for the employer to follow its disciplinary procedure.

However, if the employee’s poor performance is capability related (ie they do not have control over their failure to meet the employer’s standards of performance), it will be appropriate for the employer to follow a capability procedure for performance management.

It is not always obvious whether an employee’s poor performance is due to capability or conduct. In some cases, it will be a combination of the two. The employer may need to adopt the procedure that appears to it to be the most appropriate and change course if the evidence that emerges suggests that this is necessary. Irrespective of which procedure the employer follows, it should comply with the Acas code of practice on disciplinary and grievance procedures.