Any Questions: Holiday Entitlement; Disciplinary & Performance; Flexible Working; GDPR

Posted in : 'Any Questions' Webinar Recordings on 18 October 2017
Seamus McGranaghan
O'Reilly Stewart Solicitors

In our second 'Any Questions' webinar, broadcast live on 11th October 2017, Scott Alexander from Legal-Island dicussed questions on the following issues with Seamus McGrenaghan, Director at O'Reilly Stewart. Click on your preferred topic to go straight to the question and answer in the transcript, or watch the full webinar recording below:

Holiday Entitlement and Carryover

Bank Holidays and the Statutory Calculation

Problem Apprentices

Dealing with Grievances

Workplace Investigations

Agency Workers and Flexible Working

Fitness to Work: Medical Evidence

Flexible Working Requests

GDPR Recommendations

Data Processors and External Third Parties

 

Transcription

Scott: Good afternoon, everybody. My name is Scott Alexander. I'm from Legal-Island. I'm here with Seamus McGranaghan from O'Reilly Stewart solicitors. Welcome to the second of our webinars called "Any Questions?" where we deal with a series of employment law questions that would be of value we think to people who operate in that area or you're in HR from Northern Ireland.

Last time, we dealt with a series of questions including holiday pay. We've got one question that's come in that kind of ties that up. But the rest of the issues we're going to deal with today are on disciplinary issues, procedural issues and the GDPR that we'll be looking at. But anyway, we've got Seamus with us today. I'm here. We can see a number of you are already recording and others are coming along.

So, as with last week, if anyone's got a question that they particularly want to send, send it in on after the event and any questions that you've got, you can use the chat box today or you can send them on the survey that will appear afterwards.

So, we've got one, Seamus, from last week or ties into last month's seminar,

Q. "As an employer, publicly funded," it says here. Presumably it can be private. "Is an employer obliged to permit carryover of remaining contractual holidays when an employee has been off sick and unable to take full allocation or is it only the difference between statutory entitlement and the holidays already taken that must be carried?"

Seamus: Okay. Well, I think the important thing there is the word contractual. The first thing you need to do is go back and look at the contract and see exactly what it says in relation to holidays. In general, the position will be that if holidays are permitted to be carried over, they'll only be the statutory holidays. So, it's the difference between the statutory holidays that are left. Important there just to go back and make sure you read thoroughly what the contract says and that you're clear with the employee as well about what their entitlement is.

Scott: So, it could be you snooze you lose on the contractual things because that's in the contract.

Seamus: Yes, absolutely.

Scott: It says here, "Has this been tested in the tribunals here or European case law in relation to the contractual entitlement and can bank holidays be included in the statutory calculation together with days off that the employee has taken?";

Seamus: Yes. The statutory or bank holidays, they can be included within the calculation for holidays. I'm not aware of any specific tribunal in Northern Ireland cases in respect of this. That's why we talked about it the last time. We take that cautionary approach when it comes to the holidays because we don't necessarily want to be the first one to challenge this.

Scott: What they have established with the case law is as far as Europe is concerned, it's the 4 weeks or 20 days or whatever it happens to be that's guaranteed, the rest isn't.

Seamus: Very clearly.

Scott: Okay. Our next issue we're going to deal with now is disciplinary and performance issues. Just a general one here for you, Seamus:

Q. How far can you go when dealing with problem apprentices?

Seamus: Okay. Well, I suppose we need to be careful, and again, cautionary whenever we're dealing with apprentices, in general, it tends to be in my experience that apprentices are employed under a specific contract. It might not be the normal, usual contract of employment that the business has. So, it could be a particular contract. Often, if there is a regulator or a guardian, as they're called, involved, they will have provided the appraisement contract for it to be adopted by the business.

So, it's important that that contract is initially looked at and considered it's right for the business itself. The agreement tends to be that the employer is agreeing to take the apprentice on and train them up. You'll usually find that's for a trade or a profession. So, for instance, myself back in the day, a long time ago, I had an apprentice contract. The law society would have provided that to the office here and it would have been looked at and then eventually all the parties would have signed up.

Generally, there's the three people that are involved in those types of apprentice contracts. Then once the apprentice is in, it will have to be explained to them what the general expectations will be for them in terms of their performance. You'll see in respect to some of these professional apprenticeships that there will be an expectation that they attend if they're going to classes or if there's examinations that they're required to pass the examination and things like that. There could also be general performance issues and it can be hard to monitor whenever you maybe have the apprentice in only a couple days a week or they're in for a few weeks and out of the business for a number of weeks.

It's important that there's proper reviews done and there's a joint process between the business and the employee itself. Where there are issues that arise, you do need to be careful in terms of dealing with those issues fairly, as you would for any other employee. The risk for any other apprentice would be if you were to unfairly dismiss or terminate the contract, that the employee would have some come back on to you for breach of contract.

There have been cases in the past whereby the apprentice has sought loss of earnings because the deal would be at the end that you'd be qualified in your trade or your profession and able to get work then after that.

Scott: You're not guaranteed a job with the employer?

Seamus: No, absolutely. It's clear as well that at the end of the apprenticeship, that's what the contract period is for. That's what the purpose of the contract is. Often if the apprentice is good and the business has invested their time and their money into them, they may have a job for them. Sometimes what they'll say is we do have a job coming up but it's going to external trawl and we're going to recruit into that as we normally would. So, it depends on the nature of the relationship there, but certainly there wouldn't be an expectation from the apprentice that they're automatically entitled to the job at the end of their completion of their apprenticeship.

Scott: There would be an expectation that if I qualify as an apprentice, I will be able to earn more and therefore potentially sue the employer if they terminate my contract incorrectly, not just for the period of the remaining contract, but potentially for future earnings because I can't earn as much unless I'm a fully qualified person.

Seamus: Yes, and the case law has shown that where it is unfairly . . . where the contract is unfairly breached by the employer and even if we're looking at situations for redundancies and things like that when it comes to apprentices, you need to tread very carefully and you need to be going back to the contract and looking to see what it says. Bottom line is that the apprentice really shouldn't be treated any less favourably or fairly than a normal employee, but you just have to tread a bit more cautiously with your apprentice, in particular your contract that you have.

Scott: Still on discipline, performance issues,

Q. "If an employee raises a grievance and it's been dealt with under a formal discipline harassment policy, do you still have to follow the grievance procedure with the employee? What do you do?"

Seamus: This actually happens quite regularly. So, if you have someone that you are proceeding along a disciplinary line with, it may be that they will bring up a grievance. There's a couple of things you need to take into consideration there. The first is to take the grievance and read it and see what it says. If the grievance has a bite or relates or touches to the disciplinary issues, we would look at the LRA Code of Practice, for instance, and we'd see that there's a recommendation that were it touches or where it forms part of the disciplinary issues, that you would stall and stop and postpone the disciplinary and deal with the grievance.

For the employer, that can be quite frustrating because then they're having people into a whole different set of proceedings and they're dealing with it on a grievance process. They possibly have to deal with an appeal as well and then go back to the disciplinary half. Sometimes for the employer, it can seem as if it is stalling that measure by the employee. But it's important that whatever the issues that touch and relate, that you do take those steps.

Where I think it depends on where exactly you're at and the position you're at, if you're at the investigation stage whenever these allegations are raised on a grievance, it might be very well possible to have a concurrent position whereby you're investigating both and that would be helpful in terms of you could arrive at a clear conclusion in respect of the grievance angle. So, the potential disciplinary allegations and you would be able to move forward without having the delay of the grievance process. But again, it will very much depend on the circumstances.

Scott: Keep an open mind, really.

Seamus: The employer needs to be clear about that and has to treat the employee fairly. The other side of it is that if you have a grievance that arises and is not familiar with the disciplinary process, you would deal with that separately and quite possibly at the same time.

A clear example there would be that if the employee, I've come across this before, the employee alleges that they have been particularly . . . disciplinary things are being brought against them because of a particular reason, i.e. that they have blown the whistle about something in the past or the employer doesn't like them because they've raised an issue on health and safety.

I see a lot of these claims coming whenever the person doesn't have the one-year service to bring a claim on the tribunal. They'll look at health and safety claims or some sort of public interest disclosure claim on the '96 order. It's important in those circumstances that you do pause and you do stop the disciplinary. You deal with the investigation of the grievance, you tie it all up and then you go back to your disciplinary after that. I think from a long style position of looking down the line on the tribunal case that it would be very helpful to have done that rather than try to roll them up together.

Scott: It makes you look fair in the process and allows you to eliminate any potential errors that could be there. If somebody's saying, "I've got new information," it would be silly not to look at it. Down the line it's going to be held against you.

Seamus: It's similar to someone saying that, “There's another witness who you haven’t met or investigated with” that's different in terms of its investigation on the disciplinary. But certainly, on the grievance side of things, it's better for the employee to take a clear approach on it. They present themselves as being much fairer in that respect.

Scott: Another question here still on investigations and discipline,

Q. "We've been running our own investigations into disciplinary and grievance issues including harassment and bullying. They seem increasingly fraught with problems." There's a surprise. "And they take forever. We've outsourced them, but that could be very expensive. Do you have any advice on running workplace investigations from your legal perspective?"

Seamus: I think it's helpful to go back to, again, if you look at the LRA Code of Practice in relation to disciplinary and grievance, it's always surprising to me that for disciplinary proceedings, we have our one, two, three procedures that everyone will be aware of. But it's interesting that that doesn't need anything to do with an investigation.

I've had many cases that have fallen at the last hurdle at tribunal or maybe when we get to actually making an outcome where there's matters that haven't been properly investigated and the whole case can fall apart or fall down. So, the investigation is really important and we need to make sure that it's been done fairly.

A big point to make in respect to these investigations is that there's not an expectation that they are at the level of criminal proceedings or that it's what the police would do. Very much, again, you're looking at the reason it hasn't been fair to the employee. As well, I find that during investigation processes there are a lot of distractions that can be raised, either by the employee or by other offices.

I think it's just important that you remain focused on what the issues are and that you don't detract from those. It's about getting through your investigation process and, again, moving expeditiously as possible. It's about managing that process and making sure that you're not focusing on things that wouldn't be relevant to the actually disciplinary. So, it's about keep it in there.

I suppose the only other thing that I would say about that is be careful with your investigation and don't leave yourself exposed in a position where you're at a disciplinary hearing or that you reach your outcome and you're at a tribunal and all of a sudden you realise you've relied on evidence or documentation that you haven't disclosed to the employee. Everything you deal with and any decision that you arrive at your outcome, the employee should have seen and have the opportunity to comment on that evidence.

So, you get to the disciplinary outcome stage and you're looking at your decision and you've realised there's been evidence you haven't disclosed on the investigation, two decisions to make. One, you go back and provide it to the employee and give them a fair opportunity to comment on it or second, you disregard it. The fairer one would be to let the employee have a fair crack at the whip.

Scott: Nobody's going to believe that you didn't have regard to it anyway. So, if it's CCTV, sure they see CCTV if your total receipts or witness statements, they have to see everything, but anything you're relied on, told to make a decision has to go across to the other side.

Seamus: Absolutely.

Scott: We had another question just come in on the chat box, which I'll move away from the disciplinary things here and just read this one out,

Q. "Are agency workers entitled to available flex time. Fellow employees within the same office have this benefit." This is an external presumably agency worker who doesn't qualify as an employee.

Seamus: Certainly, the agency worker regulations here in Northern Ireland that apply, if there is flexible time available, certainly. Really, what should be agreed is that the working position is agreed at the outset. But then again, anything can happen. There would be an opportunity for them to make an application.

Again, if you're looking at our flexible working guidance that we have from government in terms of it, you must be an employee, but you can't be an agency worker and you have to have worked for your employer for 26 weeks continuously before applying and you can't have made the application if you've made another application in the past 12 months. The other exemption is if you're in the armed forces there as well that you can't make an application.

Scott: I think we’re at cross-purposes… we'll come back to it, but I think this is flexi-time as opposed to flexible working.

Seamus: Apologies.

Scott: I think it's just that in civil service, you can start at 8:00 or 10:00, it's a condition that's applied to an employee, does it have to be applied to the worker who's an agency worker as well?

Seamus: I think in terms of fairness and reasonableness, absolutely. The employee should be able to benefit from that.

Scott: You have to justify it otherwise.

Seamus: Yes, my apologies.

Scott: That's what happens, folks, if you throw a question in the chat box. We don't know what they're going to be. We'll find what the answer is later on. If we have to come back to it and clarify it, we can do it in the next broadcast, which, for your diary, is due on the 22nd of November. You're listening to Seamus McGranaghan from O'Reilly Stewart Solicitors and I'm Scott Alexander from Legal-Island.

Let's move on to procedural issues and we'll see if we can come back to any discipline. Here's an interesting, one, Seamus,

Q. "If after a referral, occupational health states the employee is fit to work but their GP still issues a fit note saying they aren't, can we withhold company sick pay and/or just pay statutory sick pay?"

Seamus: This is similar to a query that we had last time that was in relation to when you have two conflicting pieces of medical evidence. On this one, I have to say that I would consider the occupational health report a more independent report, but I just don't think that it's as simple as saying our occupational health doctor has been clear and you're required to come back.

The general position should be that whenever you receive the occupational health report, copies, should be sent to the employee. Sometimes they're already sent to the employee by the doctor and you arrange the meeting with the employee and at the meeting it should be explained to the employee that they've been declared fit and they're expected to return to work and the date should be given and that should all be agreed.

If any subsequently receive a GP, fit note to say that the person isn't fit, you need to do two things. You need to carefully consider what the fit note says because it could be a new ailment or a new issue that has arisen that might not be related to the old one. Second of all, I think you need to investigate that. The investigation should absolutely involve engagement with the employee and I think that's the key to dealing with these matters is keeping engaged with the employee.

I know that can be difficult at times and the employee sometimes can be a bit avoidant and you're also worried about harassing the employee, but engagement on a fair basis is the best way to proceed. If the position is that it is the same ailment and you have conflicting evidence, I think my advice at that point would be don't withdraw the sick pay that's there.

Again, I don't really see a distinction between we're not going to give them company. We'll just give them statutory. I think you must go back to your contract and read what the contract says and be clear about that. I don't think it's an I or other one.

But I would be taking the fit note and possibly sending a copy of that on the occupational health, the same doctor and asking for comments and if the occupational health doctor is clear in terms of the position, that the employee is fit, it's about coming back to the employee and saying, "We consider you are fit. We expect you to return to work," and if the employee didn't return to work, you would have the option then of either withdrawing the sick pay and or looking at possible disciplinary proceedings on that basis.

So, it's really about making sure you are covering your bases here. You're not taking any rash decision in terms of it and you're acting fairly and reasonably.

Scott: You've kept your records, so we've been acting reasonably. We've gone in there with an open mind. Even if you think they aren't swinging the lead. You keep your open mind and go through the process.

Seamus: Yeah. I think it's about building your case and making sure you have taken the appropriate steps of going back to occupational health or getting to the bottom of what the issue is with the employee. Again, I have a tendency that occupational health is more independent.

Scott: Okay. We've got a question going back to flexible working. We had a question from earlier before the broadcast,

Q. "We've had a flexible working request in from an employee. It's the first we've had for some time. It's the very first from a single male employee who has no children. Any advice?"

Seamus: Well, these, I suppose, the businesses and employers can expect to get these applications for flexible working, the position has been from the 5th of April 2015, any employee that is applicable can apply for flexible working. Gone are the days when you had to have a child, 17 or 18 for a disabled child, or that you were a carer.

Not everybody can make these applications. So, it really is about the employer carefully considering the application. I do mean considering it, not just simply saying it's not going to work and we're not looking at it, considering it. Then working through the process of is there a genuine business reason as to why we wouldn't be able to grant this or is it something that we can work with?

Often, what can happen is that maybe the person doesn't get exactly what their application is for, but they might get some sort of variation that they can work with the employer and align that. But the employer would have to have a legitimate business reason for not permitting the application for flexible working.

Scott: So, it applies to everybody. In Northern Ireland, we follow all the procedures, so you've got to be there with your business case. The Statutory procedure on flexible working requests still effectively applies to that.

Seamus: That still applies here in Northern Ireland, different across the water now, but it does apply here in Northern Ireland. The way and the manner that the employee can bring these applications, gone are the days where you had to fill out a specific form provided by your employee, all the employee needs to do is submit this on an email and just has to say their application clearly.

Scott: So, if I looked like a surfer dude, I don't, but if I did, and I want to take every Friday off to go to Donegal to go surfing, that could be the application and you couldn't say, "You don't have any kids, so you can't get it."

Seamus: Certainly, you could make the application, but just because you make the application doesn't mean that you're going to get. . .

Scott: You have to state the business case...

Seamus: And the employee would have to look at, "Is it feasible for this employee to have every Friday off?" There might be certain businesses where it's not possible or it might be that business can be moved to another day and it can be granted. But I suppose the other thing is that the employer should be aware that if an application is rejected, the employee can appeal and there should be an appeal procedure that should be put in place in terms of that. Also, just for the employee, if the application is granted, that it may be permanent.

I suppose that's part and parcel of owning the business. The employer will be looking for some security in relation to when the employee's got to be in work and not going to be in work. It's just that it's not a temporary arrangement. Sometimes the employer would say it's permanent and that's what it's going to be going forward and the employee has to accept that.

Scott: You have to agree that it's temporary or it's going to be permanent. I want to move on to a totally different subject here, but one which is very important to most people, the General Data Protection Regulation, the GDPR. Question in here,

Q. "The GDPR is a big threat," at their surprise, "With €20 million fines being the headline scare, how might we best prepare for it?" If we could do just three things before the 25th of May 2018, which is when it kicks in, what would you recommend?

Seamus: I know this is a hot topic in relation to GDPR. I think people are feeling a bit of panic in terms of it coming and it's so close to coming. The 25th of May is not that far away. The purpose of it is to strengthen and unify data protection for individuals within the EU, but it is also going to impact us in the UK. There's no get out clause for us, unfortunately. That's the way that it's going to be.

In terms of three things, it's hard to limit it to three things.

Scott: I'm going to limit you to three. No, four, you can do four.

Seamus: You're going to hold me to that.

Scott: No more than that.

Seamus: In our office here, what we did, this was a good idea, we had seminars during the summer months. People are off during the summer. We had a number of seminars. We really looked at our internal awareness, if I call it that. That was about educating our staff, our support staff and our professional staff in terms of general data protection and also what would happen with GDPR further down the lien. It's just about bringing it to their attention and I think making sure that the people are aware. So, it's the silly things that people might do, have a file of papers with their client details on it and if they leave it at a restaurant because they've been out for lunch straight after their appointment . . .

Scott: That's not really any different than the existing . . .

Seamus: No different.

Scott: The difference is you can get fined €20 million.

Seamus: That's the big difference.

Scott: Instead of half a million quid.

Seamus: To be clear about that, the position is it could be more than that - it's up to four percent of your worldwide turnover. So, for local businesses within Northern Ireland.

Scott: Pretty successful firm you've got here.

Seamus: Absolutely. Bringing up the internal awareness is the important point. The second thing would be look at the documentation you're holding, personal data. It is about having some sort of system in place because under the new regulations, there will be a system whereby you have to be clear about the documentation that you're holding, why you're holding it and where you got it from, things like that. It might be looking at gone are the days of having the personnel file in the corner and saying if anybody wants to know, I'll go and check through it. It's about keeping your data up to date.

Scott: It's about auditing that but again, it's all personal data, isn't it? You're not talking about financial data in relation to a firm. It's individual personal data.

Seamus: It's typical things like looking at the subject access request, but it's about being on top of it and auditing, making sure you're shredding and getting rid of any data that you don't need any longer and making sure that you're adhering to that process.

Scott: Raising awareness with staff about the difficulties, auditing and recording your documentation. What's your third?

Seamus: The third one, and this is a general one again, do your data protection impact assessment. One of the ideas that the other people have done is they've sent a dummy email around the office and see who exactly has been on top of it and opened up and caused difficulties in terms of breaches of data or brought in some DNS virus in the end of their system, whereby their data is going to be taken and disseminated somewhere else. So, ideas like that, looking at your impact assessment and trying to prepare and get your staff ready for how this is going to work . . . and just as a fourth one, just to flag your data protection officer.

In general, it's a good idea to have a Data Protection Officer, a formally appointed one. We have a formally appointed one as of last year. Just making somebody much more aware of what the position is and somebody within the office that everybody can go to, to get information of if they have issues or queries or things they need to discuss, that they can go and identify that. The position at the minute is limited to the public authority, but also includes organisations that carry out the largest scale possession of specific types of documentation like health records and data and things like that. I think as a general principle, get a Data Protection Officer in place.

Scott: Somebody in place that knows a fair bit about what we're talking about or at least test where the weak spots are.

Seamus: Exactly.

Scott: Continuing with the GDPR,

Q. Why should an employer seek assurances from external suppliers or data processors? Who's responsible if it's a data breach?

Seamus: This is interesting as well and one that we discussed in our seminars. Because we rely on third parties, we do send information out and those third parties hold that information. We don't do it internally here, but things like payroll, records could be gone off to a third party or even at times HR completely.

Scott: Occupational health, all that kind of stuff.

Seamus: Absolutely. It's really about asking the third party for a copy of the data protection policy and procedure. I think it's about meeting with them, engaging with them, getting to know, getting assurances from them that they're doing things properly, asking to see their system and how they store things, are they using encrypted emails? Are they password protecting documentation that's been back and forth? You'll get a bit of a general theme as you work with them.

The reality here is if there's fines and breaches that come along, his head will roll if we put it that way. Potentially what the employer could do is get some sort of indemnity, some sort of assurance in writing from the third-party provider and seek to cover their back in that sense. The reality is if there's a breach that happens, it falls on the head of the employer from a publicity and media side of everything else. The employer will look very wicked.

Scott: Just don't ask that part of the questions. You've got €20 million fines or 4% of your global turnover. But each of those individuals, as is happening with Morrisons at the moment with their staff members, when their records were breached. So, you're facing that plus the publicity. It's a massive risk for most employers.

Seamus: Yeah, 100%. I think key advice for somebody out there that is struggling or panicking about it is I've found the Information Commissioner's Office to be a good resource and they've been very helpful and they're good at giving advice and they're good at giving policies and procedures. So, if you are concerned and you're worried about it, try engaging with them. I don't know how that will work in the next few months when they're up to their eyes, they're so busy. But certainly, it's a resource there that you can go to.

Scott: They're based at the Gasworks in Belfast.

Seamus: They have a local office here in Belfast and I find them to be very helpful.

Scott: Okay. I think we're coming to the end of our broadcast. There's two or three questions. Maybe you can get in touch with Seamus directly, "Is there anything in the GDPR that could be unique to Northern Ireland or the Republic of Ireland? I'm just looking for a piece of mind." We had a discussion before, but I don't think we're going to have time to go through that question, if you want to get in touch with me or Seamus, we can contact you directly. We'll deal with it anonymously as we deal with all those questions in our next webinar.

The next webinar takes place on the 22nd of November and we've already had a question for the next one. People are looking at selection of redundancy pools and restructuring questions. So, if you've got issues around there or anything else on employment law, if you send it in on the survey that we'll send you or drop into the chat box next month and we'll deal with them then.

So, from Seamus McGranaghan from O'Reilly Stewart Solicitors and me, Scott Alexander from Legal-Island, think you very much for tuning in. Tell everybody about it and we hope to see you next month. Bye now.

Click here to register for the 'Any Questions' webinar on 22nd November 2017:
https://register.gotowebinar.com/register/6566621377301211395

This article is correct at 18/10/2017
Disclaimer:

The information in this article is provided as part of Legal-Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article.

Seamus McGranaghan
O'Reilly Stewart Solicitors

The main content of this article was provided by Seamus McGranaghan. Contact telephone number is 028 9032 1000 or email seamus.mcgranaghan@oreillystewart.com

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