Top 5 HR Questions for November

1.Is an employee who has exhausted their sick pay entitled to notice pay if dismissed on grounds of ill health?

Where an employee has exhausted their sick pay, whether they are entitled to payment during their notice period is a complicated question. It depends on the amount of contractual notice compared to statutory minimum notice. An employee who is going to be dismissed on the grounds of ill health is always entitled to receive notice, and the notice you have to give, will be the greater figure of the contractual notice period and the statutory minimum notice period.

Section 88(1)(b) of the Employment Rights Act 1996 provides that the employee should be paid full pay for the statutory minimum notice period in cases where they are incapable of work because of being absent on ill health grounds. However, under s.87(4) this right does not apply where the contractual period of notice exceeds the statutory minimum notice period by at least one week. This principle is perhaps best illustrated by way of two examples.

Employee A has been employed for five and a half years when they are dismissed on long-term incapacity grounds. Under their contract of employment, they are entitled to receive one month’s notice. In this case, the statutory minimum notice period of five weeks exceeds the contractual notice period of one month, so Employee A must be given five weeks’ notice of the termination of  their employment and, in accordance with s.88(1)(b), they must receive this at the full rate of pay.

Meanwhile, Employee B has been employed for two years when they are dismissed due to long-term ill health. Under their contract of employment, they are entitled to receive four weeks’ notice. In this case, the contractual notice period of four weeks exceeds the statutory minimum notice period of two weeks, so four weeks’ notice of termination of employment must be given. However, as the contractual notice period exceeds the statutory notice period by at least one week, this means that s.87(4) is triggered and there will be no obligation for it to be paid at full pay. If the employee’s entitlement to sick pay has already been exhausted, no pay at all will be due during the four-week notice period.

2. Where an employee has two jobs which employer is responsible for ensuring that their total weekly hours do not exceed the working time limits?

Employers are obliged, under reg.4 of the Working Time Regulations 1998 (SI 1998/1833), to take all reasonable steps to ensure that the 48-hour limit on weekly working hours is complied with. This means that, in this situation, both employers will be obliged to ensure that the employee’s total working hours in the two jobs combined do not exceed this limit unless the individual has chosen voluntarily to sign an opt-out agreement.

If an employer knows or suspects that one of its employees has another job, it should make reasonable enquiries of the employee to ascertain how many hours a week in total they are working. If, following such enquiries, it transpires that the employee is working more than an average of 48 hours a week in total, the employer should ask the employee if they wish to sign an opt-out agreement. The employer should point out that, if the employee declines to do so, action will have to be taken to ensure that they do not work in excess of 48 hours a week on average, for example by completing a timesheet.

If in the employer’s view the number of hours being worked might threaten the health or safety of the employee (or of others), the employer must take all reasonable steps to remove the health or safety risk. This might mean instructing the employee to give up the other job, or reduce the number of hours being worked there (if that is reasonable). The priority should be to protect the health and safety of all workers by ensuring that no individual works such long hours as to be a danger to themselves or to others.

3.How should an employer calculate a term-time worker’s paid holiday?

There is no specific legislation setting out how to calculate holiday pay for term-time workers. Employers must ensure that the paid holiday of term-time workers is not less favourable than that of full-time workers (as this would be unlawful under the Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551)).

Employers must also ensure that term-time workers receive at least the statutory minimum entitlement of 5.6 weeks’ paid annual leave a year. The employer can designate periods during the school holidays to be the term-time worker’s annual leave and pay holiday pay in instalments over the year.

Where a term-time worker has regular hours during term time and their salary is paid in equal instalments over the year, to ensure that they are receiving the minimum statutory paid holiday, the employer can add 5.6 weeks on to the number of weeks the employee is contracted to work during the year, before averaging their pay out into equal instalments. For example, for an employee who is contracted to work 39 weeks a year, the pay that is averaged over the year must be based on at least 44.6 weeks of work.

For term-time workers without regular hours, the employer can still pay holiday pay in instalments over the year (for example, monthly or at the end of each term) ensuring that it amounts to at least 5.6 weeks’ pay. In Harpur Trust v Brazel [2022] UKSC 21, the Supreme Court held that the holiday entitlement of term-time workers should not be pro rated to that of full-year workers. The calculation of a week’s pay for term-time workers with irregular hours should be based on the average hours worked during the 52 weeks before the calculation date, not counting weeks in which no pay was due (s.224 of the Employment Rights Act 1996).

Term-time workers are entitled to 5.6 weeks’ paid holiday, even if this works out more favourably than comparable full-time workers when calculated as a proportion of the actual number of days worked during the year.

In the Harpur Trust case, the employer had based its holiday pay calculation on 12.07% of the employee’s hours each term, following Acas guidance at the time relating to casual workers. This was found to result in the employee receiving less than 5.6 weeks’ holiday per year.

4. Must employers provide equipment for employees who work from home?

While there is no specific duty on employers to provide equipment for employees working from home, they should ensure that employees have everything they need to be able to work safely and effectively. Where the employer requires employees to work from home, it should provide the equipment or agree to reimburse employees for the cost of suitable equipment. Where the employer allows, rather than requires, an employee to work from home for some of the time (for example under a discretionary hybrid working arrangement), it should agree with them who will be responsible for providing the equipment.

Employers have a specific duty in relation to the use of display screen equipment, in addition to the general duty to ensure employees’ health and safety. The employer must arrange a risk assessment to ensure that the employee has an appropriate workstation, including the desk, chair, keyboard and screen. Employers are required to take steps to reduce the risks to the lowest extent reasonably practicable, which could include the provision of equipment for the employee to use at home.

The equipment required for a hybrid worker may depend on their working pattern. For example, an employee who works from home only on one day a week may not need the same equipment as if they worked at home on four days. However, this will depend on the impact on the specific individual’s health and wellbeing, and on their ability to carry out the work effectively.

Employers must comply with their duty to make reasonable adjustments for disabled employees. If a hybrid worker has special equipment such as an ergonomic chair at the workplace, it is likely that they will need equivalent equipment at home. Where this is a reasonable adjustment, the employer is required to pay for this equipment.

In addition to considering employee’s health and safety and work efficiency, employers must provide any equipment required to ensure appropriate data security. For example, an employee who handles hard-copy paperwork at home may require a filing cabinet and shredder.

5.Can an employer use a trial period to test whether a proposed flexible working arrangement would work?

Yes, an employer and employee may decide that a trial period should be implemented in respect of proposed flexible working arrangements. A trial period allows both the employer and the employee an opportunity to review how the arrangements work in practice, and whether or not they are likely to create any practical difficulties for the employee’s department or for the business as a whole.

The employer must notify the employee of its final decision within three months of an employee’s statutory request for flexible working, unless the employer and employee agree a longer time period. Therefore, before embarking on a trial period, the parties should agree to extend the statutory time limit under the flexible working procedure (unless the trial period will be completed within the three-month decision period).

In addition, the employer and employee should document the new working pattern, making clear that it is only a temporary variation to the terms of the employee’s contract. The written agreement should state the start and end date of the trial period (with the employer reserving the right to cut it short or lengthen it as necessary) and the changes that have been agreed. It should record that the employer reserves the right, at the end of the agreed trial period, to require the employee to revert to their previous working arrangement. The document should be signed by both parties.