Top 5 HR Questions – September

Here’s the Top 5 HR questions you have asked us this month and our answers. 

1.An employee has told me that I can accept a fit note from their pharmacist – is this right?

In order to reduce pressure on doctors, particularly GPs, the Department for Work and Pensions (DWP) and the Department of Health and Social Care (DHSC) have proposed that nurses, occupational therapists, pharmacists and physiotherapists should be able to certify and issue fit notes.

For anyone who has been off work with illness for more than seven days, a fit note provides evidence to their employer about the absence and any relevant advice on how to support the employee to remain in or return to work.

The new rules will come into force from 1 July 2022, lifting the requirement that only doctors can issue the notes.

The aim will be to support and empower better conversations about work and health between employers and staff by making it easier to get this advice certified by the most relevant healthcare professional.

This change follows legislation changes in April 2022 which removed the need for fit notes to be signed in ink. This change makes it possible for eligible healthcare professionals to certify fit notes digitally and also for patients to receive their fit note via digital channels (where GP IT systems support this).

BMA England GP committee deputy chair, Dr Kieran Sharrock, said: “The BMA has been clear for many years that it may not always be necessary or appropriate for a GP to issue a fit note, especially when a patient has seen a different member of the practice team for their condition, such as a nurse or physiotherapist.”

If you would like a copy of our letter to inform your staff of these changes, then please download our letter here.

2.How do I work out holiday for term time workers?

In July’s Top 5 HR Questions, we answered a question about how to calculate term time workers holiday. However, since then, there has been a decision on how to calculate holiday for workers with variable hours/term time workers in the case of Harpur Trust v Brazel. This case has taken over 7 years to reach its conclusion, and the Supreme Court’s judgment in this matter has now been confirmed just a few weeks ago, so please read this important update.

Background

This case involved a very specific set of circumstances but has implications for all atypical workers on variable hours and those who work part year, that makes this a case of critical importance in the matter of holiday pay and leave calculation.

This involved a music teacher, employed on a permanent, zero-hours term-time basis. She was required to work during term-times only, and her hours would vary in accordance with pupil needs. She had to take her holiday outside of term time, and the method the school used to calculate this is what has become called the “percentage method”. Essentially, the school would calculate 12.07% of her hours each term and pay her at her hourly rate for resulting hours in the subsequent holiday period.

Brazel argued that this was not correct and that she should be paid based on her average hours worked over 12 weeks in which she has worked (as was required at the time of the case. Now a 52-week average should be applied). As her employer disagreed with this, a claim was raised.

The Employment and Appeal Tribunal

The tribunal dismissed her claim, finding that the school had calculated her holiday pay correctly by applying the pro rating principle, which was in accordance with the Working Time Regulations 1998.

The claimant appealed to the Employment Appeal Tribunal (EAT), who ruled in her favour. They found that section 224 of the Employment Rights Act 1996 provided a simple and straightforward method of calculating pay for workers with irregular hours over a 12-week reference period.

In forming their decision, the EAT held that although part-time workers could not be treated any less favourably than full-time workers, the WTR did not provide any requirement to pro-rata holiday pay for employees working for part of the year, such as term time only workers, to ensure that full-time employees were not treated any less favourably.

The Court of Appeal (CoA)

The organisation appealed to the CoA. They argued that it was necessary to reduce the claimant’s holiday entitlement to avoid unjust results, as the approach suggested would result in other workers on zero-hour contracts who worked for lesser proportions of the year, such as a school cricket coach, being entitled to holiday pay exceeding that of a full-time staff member.

The CoA dismissed this. They outlined that the Working Time Directive (WTD) only requires workers to accrue annual leave in proportion to the time they work, something the Court labelled the ‘accrual approach’. However, this does not apply to remuneration for that leave. The WTD therefore placed no requirement on member states to pro-rata leave entitlements of ‘part-year workers’ to that of ‘full-year workers’.

The Court did accept that this ruling could lead to odd results in ‘extreme cases’, such as the school cricket coach example mentioned earlier, but concluded that it would be unusual for an individual who only worked a few hours a year to be on a permanent contract, and that this was not ‘unprincipled or obviously unfair’.

The Supreme Court

Essentially, they agreed with the CoA. Specifically, they said:

“In short, the amount of leave to which a part-year worker under a permanent contract is entitled is not required by EU law to be, and under domestic law is not, prorated to that of a full-time worker.”

What does this mean for holiday calculations?

This means now that the use of 12.07% of a workers hours should not be used, as this can leave some worse off. Instead, all workers should have their holiday pay calculated based on their average earnings over the previous 52 working weeks, and all workers will get 5.6 weeks leave.

What does this not mean?

To clarify, this does not change the position for part-time workers, just part-year workers. Part-time workers who work a full 52 weeks of the year but for less hours or days than their full-time colleagues, can continue to have their holiday calculated pro-rata. It also does not change the position for fixed term employees, whose holiday can continue to be calculated pro-rata for the duration of the contract.

3.Can an employer cancel a workers pre-booked holiday?

It is generally understood by employers that they can refuse employee requests for particular dates and time periods of annual leave and dictate when it must be taken, but can leave that has been pre-booked by agreement be cancelled and, if so, how?

If there is a good business reason for cancellation, such as a new critical deadline, increased workload or unexpected staff absences, an employer might reasonably be able to cancel pre-booked leave. It is advisable to set out in your employee’s contracts of employment the circumstances under which the cancellation of pre-booked annual leave could occur and any associated conditions.

As well as having a good business reason, it is important to consider the reasonable alternatives to cancelling leave; make sure that, in doing so, you will not be breaching Working Time Regulations and ensure that the employee does not lose any of their holiday entitlement from the cancellation, allowing for holiday days over the statutory minimum amount to roll over into the next holiday year if the employee is prevented from taking it in the current holiday year. Even if the employee could take cancelled leave at another time during the current holiday year, it could be agreed that leave could be rolled over into the next leave year. Agreement to this is at the employer’s discretion unless the employee’s contract states otherwise.

Before cancelling an employee’s annual leave, you must give notice. It is advisable to give as much notice as possible, in writing and to set out in the employee’s contract the notice to be given. In any event, the minimum notice must be the same length as the period of leave booked. Therefore, if an employee has booked a week’s leave, you must give the employee notice of cancellation at least a week before the first day of that leave.

If an employee has incurred costs relating to their holiday, it may cost them financially if you cancel their holiday. The responsibility for those costs could be covered in the employee’s contract terms or paid at the employer’s discretion. But cancellation can give rise to arguments about financial loss and, in any event, is often likely to lead to disappointment and poor morale. Therefore, employers should give careful consideration to all matters before taking such action.

What if an employer unfairly cancels an employee’s annual leave?

If you do not give proper notice, do not allow an employee to take their correct annual leave entitlement for the year or do not have a legitimate business reason for cancelling an employee’s holiday, the employee may be able to challenge the legality of your actions. Subject to surrounding circumstances, they may raise a grievance and/or bring a claim for breach of contract and/or constructive unfair dismissal if you cancel their annual leave in the incorrect manner. If you are in doubt, it is prudent to seek professional advice before taking action to cancel any annual leave.

Can an employee cancel their pre-booked annual leave? 

Unless there is a contractual entitlement, by law, employers do not have to agree to cancel pre-booked annual leave at an employee’s request. The exception is where an employee is on sickness absence and so cannot take annual leave at the same time. If that is the case, the employee should follow the employer’s sickness absence procedures and be allowed to take the annual leave missed because of sickness at another time, to ensure they keep their full entitlement.

Even without a legal entitlement or a contractual right to cancel pre-booked leave, to maintain goodwill and positive morale, where possible you should consider postponing and rebooking leave to a mutually convenient time for your business and the employee.

To summarise, employee annual leave can be cancelled by an employer where there is a legitimate business reason, it is lawful to do so, where alternatives have been considered, sufficient notice is given and the employee’s overall holiday entitlement is not prejudiced. An employee cannot generally cancel their pre-booked leave without employer agreement, unless sickness prevents them from taking annual leave or their contract states otherwise.

4.What do I need to do as a business, if an employee is being sexually harassed by one of our customers?

Firstly, take this seriously! Don’t brush it off because it’s a customer or a supplier, you need to investigate this matter thoroughly and make sure that your employee is ok.

Such a sensitive matter needs to be handled with care and sensitivity and you should seek HR advice to help you manage this matter in the right way.

The government has published its response to a consultation on workplace sexual harassment, confirming a new duty for employers to prevent sexual and customer or third-party harassment. This is likely to include a defence where an employer has taken “all reasonable steps” to prevent the harassment. Therefore a thorough investigation and taking the appropriate action as a result of your findings is crucial.

The government is also set to consider extending the time limits for claims relating to harassment  under the Equality Act 2010 from the current three month period to six months, but has not yet committed to making any changes.

5.Do I need to get an employee or a contractor to sign a Non – Disclosure Agreement (NDA)?

Even if your company doesn’t have top-secret information, like code for a killer new social network or the recipe for Coca-Cola, you have other types of valuable information that need to remain confidential or private.

It could be your customer list, your financial records, or ideas for a new marketing campaign. So how can you protect that information? Many people think that a NDA is the answer!

What is a NDA?

A NDA is basically a contract that binds someone to keep a secret. Its main purpose is to create a confidential relationship between a business and its contractors, employees, and any other business partners who might get a behind-the-scenes look at your operations.

The NDA is designed to prevent these individuals from revealing anything that should stay “in-house” including client information, marketing plans, financial data, competitive analysis, technical information, etc. Perhaps you simply don’t want a subcontractor to talk directly with your clients and disclose their role.

What are the key elements of a NDA?

When hiring a contractor, an NDA helps establish what he or she can and can’t reveal about your business and work. A typical NDA will include the following key components:

PROTECTED INFORMATION

Not every bit of your company information needs to be kept secret. For example, will it really matter if anyone finds out who your email provider is or where you get your coffee? While you might think that it’s best to just leave this as broad as possible to protect any and everything, it’s wise to be very specific about what can’t be disclosed publicly.

By spelling out exactly what should be covered, you make sure that the contractor is on the same page. For example, a new contractor may not even realize that they shouldn’t contact your client directly or that you don’t want anyone to know about a new website until it’s released.

TIMEFRAME

Most NDAs don’t last for infinity. You should specify exactly how long the information should stay confidential. This can be as short as the duration that the contractor will be working for you, or a set length of time (such as five years, which is a pretty common term).

OBLIGATIONS

You may need to define what the contractor can or can’t do with the protected information. In most cases, it would make sense to include that they cannot reveal confidential information to anyone outside of your company. But, in some cases, you may want to add some caveats to this. For example, are there some cases where they can use/disclose confidential information? Perhaps if they have your written approval?

What Next?

Many people think that a non-disclosure agreement is one of the best ways to protect your business when hiring an independent contractor or an employee, and they wouldn’t be wrong! However, a well written employment contract or contractor agreement, should include all the elements required of a NDA, so make sure your contract of employment or contractor agreements are fit for purpose, as one size does not fit all!

And keep in mind that an NDA, or a contractor agreement is just a document. It doesn’t guarantee that someone won’t steal or misuse your confidential information, but it does give you an opportunity to seek legal recourse if they do.

Watch out for

It is anticipated that legislation this year will curb the use of NDA provisions in employment contracts and settlement agreements alongside a requirement for independent legal advice to be provided to individuals asked to sign an NDA. New enforcement measures will be introduced for NDAs in employment contracts and settlement agreements that do not comply with legal requirements.