Top 5 HR Questions – June

Q1. If an employee is off sick on a bank holiday, do we need to pay them for the Bank Holiday or give them additional time off?

The employee’s entitlement will depend on whether or not the bank holiday forms part of their statutory holiday entitlement under the Working Time Regulations 1998 (SI 1998/1833). Under the Regulations all workers are entitled to 5.6 weeks’ paid holiday in any leave year. Where an employer grants employees the minimum holiday entitlement under the Regulations (5.6 weeks) and this includes bank and public holidays, a bank holiday will form part of the employee’s statutory holiday entitlement. In Pereda v Madrid Movilidad SA [2009] IRLR 959 ECJ, the European Court of Justice held that a worker who is on sick leave during a period of scheduled annual leave must be allowed to take the annual leave at a later time. This means that where an employee is on approved sickness absence during a bank holiday that forms part of their minimum holiday entitlement, the employer should allow them to take a day off in lieu. Payment in lieu of the statutory holiday entitlement is permitted only on termination of employment.

However, if the employer grants paid time off on bank holidays, in addition to the statutory minimum, the employee’s potential right to a compensatory day off or pay in lieu in respect of a bank holiday will depend on the terms of the contract of employment or any policy on the matter that forms part of the contract. It may also be that a right to time off or pay in lieu of bank holidays exists impliedly as a result of custom and practice, even if it is not written down in any company documentation.

Q2. What do I need to do to check if an employee is eligible to work in the UK?

Before allowing a job applicant to start work, the employer must carry out a right to work check.

From 6 April 2022, employers are able to use a new digital identification verification service when carrying out checks for British and Irish citizens, based on a valid passport (or Irish passport card). To do this, the employer must use a certified Identification Document Validation Technology (IDVT) provider.

Alternatively, the employer should request that the job applicant produce original documentary evidence indicating that they have the right to work in the UK, check that the documentation appears to relate to the job applicant and keep a copy of it for the duration of the person’s employment and for two years after the termination of employment.

The Home Office produces lists of acceptable documents for the purposes of checking an individual’s right to work in the UK. See:

In some circumstances, the employer must use the Home Office online right to work checking service to confirm the applicant’s right to do the work in question. The employer will be able to conduct an online check only where the applicant has:

  • a biometric residence permit number;
  • a biometric residence card number;
  • settled status under the EU settlement scheme;
  • status under the points-based immigration system rules; or
  • a frontier worker permit.

Q3. I’m worried that we work with a lot of contractors/ self employed workers, and people keep talking about IR5 and whether we are in breach of this. What is IR35 and what do we need to do to make sure we are not in breach of IR35?

In its simplest terms IR35 is a piece of legislation put in place to ensure that self employed workers/contractors are truly self -employed and not disguised “workers” or “employees” if the self employed person is in fact an employee or a workers, then you would be required to make NI contributions, pay a contribution towards their pension and they would also have to pay Tax on their earnings.

The extension of the IR35 rules to the private sector took effect on 6 April 2021. However, HMRC have stated that it would be taking a “light touch” to enforcement penalties during the first 12 months of the new rules, unless it had evidence of deliberate non-compliance.

Now that the light touch approach has now expired, it’s time to ensure that any contractors/freelancers that you work with meet the IR35 rules. In any event, they should be regularly reviewing status determinations to ensure that they are still accurate.

Under the rules, the organisation engaging the contractor is responsible for determining their employment status and assessing whether IR35 applies. If IR35 does apply, the organisation that pays the individual’s fees is deemed to be their employer for tax and national insurance purposes.

We have created an IR35 pack for our clients that you can purchase for just £250 which includes a letter to give the contractor/freelancer to explain your obligations and what information is required from them, a form for them to complete to help you determine their status and a process that you can follow to ensure you are completing your due diligence. Just get in touch if you would like to purchase the IR35 pack or you would like us to complete the due diligence for you.

Q4. Can an employer require employees to repay contractual maternity pay if they do not return to work for a minimum period?

Yes, an employer can require an employee to repay the whole or part of their contractual maternity pay if they do not return to work for a minimum period after their maternity leave has ended. To avoid any mis-understandings, it would need to have been specified in their contract of employment, your Maternity Policy and also clearly stated in their letter confirming their maternity leave start and end dates.

However, the employer cannot require the employee to repay the part of their pay that relates to statutory maternity pay or pension contributions.

The requirement to repay must have been either agreed in writing in advance or included as a clawback clause in the employee’s contract of employment. It is good practice for the employer to draw the employee’s attention to this clawback condition in writing, prior to the commencement of maternity leave, such as in their maternity leave letter.

The employer should consider allowing the employee to repay the contractual maternity pay in a series of agreed instalments if repayment of one lump sum would cause them financial difficulty.

As with any potential discrimination, its best to seek HR advice before responding to a request of this nature.

Q5. Are employers required to provide a prayer room for staff?

Employers are not specifically required to provide a prayer room. However, if a quiet place is available, and allowing its use for prayer would not cause problems for other workers or for the business, the employer should agree to it being used for the purposes of religious observance. Where an employee’s religion requires observance of particular prayer times during the working day, this should be respected wherever possible.

Willingness to accommodate the religious needs of employees is likely to be in the employer’s interests, as it will help maintain the loyalty and goodwill of the workforce and reduce the risk of a discrimination claim on grounds of religion or belief.

If the employer has no room that can be allocated for use as a permanent prayer room, it should discuss with employees how else their request might reasonably be accommodated. For example, it might be possible to use a meeting room or some other private space as a temporary prayer room at specified times of the day.

As with any potential discrimination, its best to seek HR advice before responding to a request of this nature.

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