Maternity & Equality; Whistleblowing; Annual Leave & Sickness; Apprenticeships

'Employment Law at 11' is a new series of webinars from Legal-Island in conjunction with O'Reilly Stewart Solicitors. Scott Alexander, Head of Learning and Development at Legal-Island, dicussed questions on the following issues with Seamus McGranaghan, Director at O'Reilly Stewart:

• Apprenticeships
• Maternity and Equality Issues
• Long-term Sickness and Disability
• Gender Pay Gap
• Whistleblowing
• Annual Leave and Sickness

Transcript

Please Note: This is a direct transcript of our recent webinar. It may not read as well as a written article would.

Scott: Good morning, everybody. It’s Scott Alexander here from Legal-Island. I’m joined by Seamus McGranaghan from O’Reilly Stewart. Welcome to our employment law discussions that we’re going to have over the next 45 minutes. If you have to go away early, there will be a podcast in about an hour or maybe an hour and a half after this broadcast. You can listen back to bits you may have missed.

We have four main topics today. We’re looking at maternity and equality issues, whistleblowing, annual leave and sickness and the interface of those on apprenticeships as well. We’ll be starting with that quite soon. As well as the podcast, we also have interactive transcripts that will follow. You can find all of those on the Legal-Island website. You just search for webinars and they’ll pop up.

Apprenticeships

Q: Under what circumstances can you lawfully dismiss an apprentice prior to the completion of their apprenticeship in Northern Ireland? I read somewhere that this can only be done in cases of extremely serious gross misconduct. Where might employers find detailed information on apprenticeship legislation or guidelines in Northern Ireland?

So, Seamus, the first question we had from last week, actually, is about apprenticeships. The question we have here is, ‘Under what circumstances can you lawfully dismiss an apprentice prior to the completion of their apprenticeship in Northern Ireland? I read somewhere that this can only be done in cases of extremely serious gross misconduct. Where might employers find detailed information on apprenticeship legislation or guidelines in Northern Ireland?’

Seamus: Good morning, Scott. Apprenticeships has always been a thorny issue here in Northern Ireland. It’s been made slightly more difficult on the basis that there was an amendment made to legislation in 2012 in England and Wales. There was the application of the apprenticeship agreement regulations, which changed the position very much for how contracts are perceived for apprentices in England. The difficulty is that we’re stuck with our status quo position here. So, the person with the question, the query here is right. It is very difficult in terms of dismissing or treating an apprentice in the same way that you would treat a normal employee.

The basic position here remains that the contract of apprenticeship is stated to be for the duration of the training period. So often, you’ll see these contracts that will be formally two to three years, sometimes up to four years. It can be longer than that. The contract that’s provided to the apprentice will specify the term at that point. In essence, the law here says that the contract is only terminable at the conclusion of the training plan itself and that you can’t just simply provide notice to say we’re going to terminate.

Equally to that, employees should tread carefully when they’re considering terminating apprenticeship as a result of any kind of misconduct that has taken place. Often, accepting the fact that they are apprentices, there will also be an issue there in terms of how they’re performing during their apprenticeship. The employer may see an apprentice as not performing correctly or maybe that they’re not attending work on time, the usual things that would apply to an employee. But the bar is that much higher for the apprentice. Certainly, it is in a situation whereby you can simply apply your normal rules and procedures to the apprentice.

Scott: So, if I were an employer, there’s an apprentice who does something daft, they crash the forklift into a wall or something like that, had that been an employee, you might consider dismissal because it was negligent or whatever. It’s much more difficult with an employee who happens to be an apprentice.

Seamus: Absolutely. When the employer is looking at the circumstances for the apprentice, it must make the decision on the basis of taking into account the experience of the apprentice and it must provide them at all times with guidance and opportunities to improve. The basics are they are an apprentice. They are on an apprenticeship. They’re on a learning curve and that has to be accepted.

The early termination of an apprenticeship, there’s risks in relation to an employer doing it. It really has to be those extreme circumstances where there is clear gross misconduct and even sometimes where there would be gross misconduct, it might not be enough to get you across the line for the termination of the apprenticeship. So, you really are looking at those circumstances in extreme cases and unusual cases that will not be for the standard matters that we would really see as misconduct.

Scott: You have to really take legal advice because the costs are so much higher.

Seamus: Yes.

Scott: The compensation would be to the end of the apprenticeship, but also future loss of earnings. The person can no longer be 100% earner because they’ll qualify in whatever trade they’re in.

Seamus: Absolutely. There’s a concern that by terminating the apprentice contract that you really are having a significant detrimental impact upon their career. It can be career ending because you can imagine being an apprentice and being dismissed and trying to pick up and get another apprenticeship and you’re obviously going to be high on that new record and these apprenticeships are few and far between, as we know. So, the early termination of the apprenticeship carries all the risks of a normal termination. Then you’re also looking at the potential value of the contract itself.

So, if you’re dismissed and you have a contract for four years, there’s significant liability there for the employer and then in addition, the case law tells us that they can take into account a further period in relation to their losses in the future, so future losses as well and the impact maybe the early termination has had upon that. So, say from that it takes me another year to get another contract and there’s another year’s loss that I potentially have, you take into account pension loss and everything else. It can be built up to be significant.

The only sort of option that I can see for employers here in Northern Ireland when it comes to an apprentice where they really are dissatisfied but they don’t have the grounds in order to terminate the contract for gross misconduct for those extreme cases or maybe to go back to the regulator or the third party colleague or company and see if there’s any kind of transfer that can be done for the apprentice. That might be one way that the employer could look at it, but otherwise, it’s difficult.

Scott: And it’s similar if you have to make redundancies, it should be making the apprentice redundant because they’re not really employed to work. They’re employed to learn. So, this should be about the last one. So, really, you’re looking around trying to find them some kind of placement elsewhere with somebody that can take on an apprentice.

Seamus: Yes. It’s difficult for the employer because there’s all those usual things that are attached to apprenticeships and workers in terms of the living wage, the minimum allowance in terms of things like that. So, it’s difficult for employers whenever they have financial issues or the company is in trouble, but the apprentice almost has an added layer of protection here.

I suppose just in addition to that, there is the issue around if a company has financial issues - a lot of these construction companies where we would maybe have more apprentices get into administration and things like that. I think in those circumstances, there isn’t really an aspect for recovery for the apprentice, but certainly a future employer would be more sympathetic to those circumstances.

Related article: How the apprenticeship levy applies in Northern Ireland.

Maternity and Equality Issues

Q: Please set out key requirements and things that might catch an employer out in relation to maternity leave and maternity rights before and after leave has been taken. For example, are there protections which if breached inadvertently can be construed as automatic discrimination on the grounds of sex? Are women who have given birth automatically entitled to return to the same work?

Scott: Okay. I see a question coming in there on the chat box. It’s on your right-hand side of your screen. So, if you want to send in any questions, you can. We’re going to move on to maternity and equality issues, Seamus. The first one here is, ‘Please set out key requirements and things that might catch an employer out in relation to maternity leave and maternity rights before and after leave has been taken. For example, are there protections which if breached inadvertently can be construed as automatic discrimination on the grounds of sex? Are women who have given birth automatically entitled to return to the same work?’ So, quite a broad question here.

Seamus: Broad question here. It may be on a theme of thorny issues here this morning, then, in relation to this. Obviously, maternity is a confusing time for both the employee and the employer. It might not be the employee’s first pregnancy and they may have been through the position before and may be aware of their rights or they may have already had children and moved to a new employer and are maybe worried the new employer isn’t on top of the legislation and the requirements as they should be. So, it’s an anxious time, I think, for both.

Just in terms of that, then, we’re looking at various different types of scenarios that could arise here in terms of pitfalls. So, the first one I think, we’re going to look at pitfalls that can happen before the person goes off of maternity leave and then after maternity leave. The first important one is the announcement by the employee. Certainly, that can be an anxious time for the employee. It surprises me that even these days, I still have female clients that are very worried they have to tell the boss they’re pregnant and the fallout that might happen as a result of that.

It’s important that employers, when there is an announcement of pregnancy, treat the employee no differently and are not taking a stance where there’s any detriment to the employee and the employee feels uncomfortable about it. If it’s their first experience with the employer, that will be their lasting experience whenever they come to announce their pregnancy. It’s just important in terms of a fresh start whenever they announce it, that they’re congratulated and that’s a welcome thing for the employee and for the company.

The next thing I think is probably right to move into—this was giving the employee some comfort in terms of what their rights are and it can be helpful maybe to sit down with the employee and have a discussion and remind that there’s lots of stuff on the internet that will be available for both the employer and employee and it will be very confusing for them. So, it’s a good idea to try and get to a position where you’re getting in line dates on your maternity leave and when that might happen.

That’s a bit of a fluid situation for the circumstances and you don’t really know what’s going to happen. There’s a bit of discretion for the employee in relation to that. So, the employer shouldn’t be putting any pressure on the employee to hammer down those dates too early or anything like that. Obviously, during the pregnancy, you’re permitted time off for your medical appointments or acceptance that if the employee is unwell and there’s a lot of absence that you’re not taking any unfair detrimental discriminatory steps in terms of that.

Scott: It’s discrimination because only women can get pregnant.

Seamus: Exactly.

Scott: There’s no need for a comparator when you’ve got pregnant women. There’s no pregnant men.

Seamus: Exactly. Often, there can be scenarios where there is periods of illness or people are feeling unwell. The next one I highlighted was, dependent on the work the employee is doing, there might be a risk assessment that’s required. Either the person could be doing a very physical job and at three stages of the pregnancy might not be able to do that.

I dealt with a case recently where I was acting for a cleaning company and there was one of the cleaners that worked at a certain premise where there was a lot of physical activity happening in terms of it and the employee had actually come and said, ‘I don’t feel I can continue doing that part of the job because I feel it puts me at risk and I’m not capable of doing it.’ So, it’s important to keep the eye in terms of risk assessments, but don’t overdo it either. Don’t make the employee feel that they are in any way treated differently or anything like that.

Scott: It’s not a static responsibility when it comes to pregnant women because as their pregnancy develops, what they can do might change and it makes it more difficult than at the start. But they are protected throughout that period completely. If the employer can’t provide alternative work, then they have to suspend them on full pay. Similarly with the time off for medical appointments, that’s with pay.

Seamus: That’s it. And just before the person goes off, it can be a good idea, obviously, to get an indication of how long the person intends to take, but they don’t necessarily have to tell you that information. They might know how long they’re going to take. If they don’t mention anything, I think there’s an acceptance they’re taking the full capacity in terms of it. Really, then, you’re into the aspect of post-pregnancy and what happens.

I think it’s a good idea that in advance of the employee going off, there’s a discussion of how much contact they want from their place of work during their maternity leave. Some employees could be very keen to be kept in the loop. They want to know what’s happening. They want updates. They don’t want to feel that they’re left out of anything. Other employees will simply say, ‘I’m on maternity leave. You give me the information I need to know and that’s it.’

Circumstances can change during pregnancy - a person’s viewpoint can very much change when the baby arrives as well. So, you need to be careful about that. Obviously, there’s no badgering of the employee whenever they’re off on maternity leave. You’re not phoning up after a few days or keeping in contact every couple of days to ask them questions, things like that. You have to be respectful of the time they have.

I have to mention redundancies during the period of maternity leave. The worst thing you can do is forget about the employee that is out of the office and “out of sight, out of mind” comes the phrase. Remember that women on maternity leave have the right to be offered suitable alternative employment ahead of others.

It’s an example of positive discrimination that we hear about and where the employees are on maternity leave, they are essentially prioritised. So, think about things if you’re doing collective consultation and respective redundancies or if there are collective consultations going on about any matter you’re involved in your place around maternity leave. Obviously, we’re into our ordinary maternity leave and our additional maternity leave and the rights that impact upon that.

But just to set that out, an employee who returns on ordinary maternity leave has the right to return to their original job, as does an employee that returns from additional maternity leave and sometimes I think there can be with an employer that there’s an automatic right to change the poster, to make adjustments to it just because the person has gone over the period of ordinary maternity leave. But you need to be careful that the changes that you are making, they are justifiable changes and that’s just not a situation where you are making those changes willy-nilly or you’re seizing the opportunity to do it.

I just want to mention briefly there about contractual benefits for the employee as well. Often, issues can arise when a person is on maternity leave whenever they’re getting maybe just statutory maternity pay, there may be those other aspects of their contract that they’re entitled to as well.

The basic position is that in general, other than the terms of the remuneration, the contract itself continues in existence, whereas on maternity leave, there can be those that are non-cash benefits that are in the contract that should continue on, gym memberships and things like that as well. We can go into a lot more detail on bonuses and commissions and all of that. But maybe that’s a whole half-hour itself.

Scott: That’s for another day, but basically everything but pay pretty much is protected during that period and holiday pay carries over, including all the bank holidays, everything just passes on to the period when they come back.

Seamus: Then holidays are an important one as well and usually a point of anxiety for anybody that’s on maternity leave. I want to mention quickly just as well that there is the option for the employee to give notice in terms of returning back early from the date they’ve already provided. They give eight weeks’ notice in relation to that. Just a quick mention in terms of if you have an employee covering maternity leave and that happens, if it’s somebody in for a contract for nine months and the employee on maternity leave wants to come back early, where does that leave you with the temporary employee?

So, sometimes it can be helpful to build in the six-month period with reviews or put in a six-month period with the right to terminate on a month’s notice thereafter, something along those lines. Finally, just in relation to the aspect of shared paternity leave and pay and the impact that all of that has as well on the maternity period. Those are some of the pitfalls, but you can see we spent quite a bit of time there going through those.

Q: Does the worker accrue holiday pay during maternity leave?
Scott: ‘Does the worker accrue holiday pay during maternity leave?’ The quick answer is yes.

Seamus: Yes, 100%.

Long-term Sickness and Disability

Q: I’m still confused about the crossover between long-term sickness and disability. I read that perceived disability brings protection for employees in Northern Ireland. Must I discount absences, for example, if an employee has a sick or disabled child? Surely, I’m allowed to employ people who can do the job and who don’t take time off, long-term or not.

Scott: Okay. Let’s move on, Seamus. If you have any questions, folks, you can send them in anonymously through the chat box. I see one that we’ll come to in a minute on sick leave, just to keep the sickness and equality issues going. But the next question is, ‘I’m still confused’, hopefully you won’t be after this, ‘about the crossover between long-term sickness and disability. I read that perceived disability brings protection for employees in Northern Ireland. Must I discount absences, for example, if an employee has a sick or disabled child? Surely, I’m allowed to employ people who can do the job and who don’t take time off for the long-term or not.’

Seamus: I would have a bit of concern about the back end of that question certainly. I know there’s a part in there in relation to perceived disability, but the first part of the question seems to deal with long-term sickness and disability. There is a difference between long-term sickness and disability. Just because you’re off on long-term sickness does not mean you have a disability.

So, it’s important just to sort of err on the side of caution when it comes to dealing with disability. We have associated disability as a genuine claim that can be brought in the tribunals here. There’s a real concern in relation to someone that maybe has a child or maybe a carer for a parent or carer, in general, that is looking at somebody with a disability and those sort of associated disability aspects that can come into play. It is a tricky question in terms of the fact that it’s all about balance.

An employer probably needs to tread somewhat carefully in terms of where they’re on notice and are aware that maybe an employee has a child with a disability or that they are a carer, and really monitoring the amount of time there that they’re taking. I don’t think there’s an open extended period where the person can simply say or the employee can say, ‘I’m dealing with a disability here. So, I can have carte blanche in terms of what I need.’ There definitely is a balance that has to be achieved between the employer and employee in relation to it.

Scott: In Northern Ireland, that really comes down to reasonable adjustments.

Seamus: That’s correct.

Scott: There’s no indirect discrimination protections, if you like, as in the Malcolm case. So, you’re in a situation where somebody’s taking a lot of time off and an employer has to make some kind of an allowance. But there’s no case you can go to and say, ‘I need six weeks here or six months there.’ It’s really a question of proportionality when it comes to disability discrimination.

Seamus: Absolutely. I think that will differ from case to case under the circumstances. Again, it’s that favourite term of mine that the employer just has to be acting reasonably in terms of it. But just getting back to general issue of long-term sickness, the definition of disability is obviously the physical or mental impairment that has a substantial long-term negative effect on your ability to do normal activities or normal daily activities.

Often, you’ll see within medical reports that we’ll obtain, they’ll say that the doctor believes this falls into the definition of disability or it doesn’t. But they’ll quickly exonerate themselves and say, ‘This isn’t guaranteed. You should obtain a legal opinion.’ It is difficult to try and define that. It really is. There are some cases where it’s clear-cut and there are others where it’s just not. You really probably are dependent on the tribunal looking at it and getting direction.

But the important task is always when you’re dealing with disability to obtain medical evidence, whether it’s from the GP or whether it’s from occupational health and to ascertain what the disability is and what reasonable adjustments need to be made in the workplace in terms of it and taking your leave from it, really, and through discussion and consultation with the employee also.

Q: When an employee is close to the end of the number of sick leave days they are entitled to claim contractual sick pay for—an employee, in this case, came into work at 9:00 and then left at 11:00 and went home. The employer logged this as sick or is it correct it should log it as sick because they’ve done some work, a couple of hours’ work. Is this in order?

Scott: Okay. We’ll move on to another question here that’s come through the chat box. ‘Into work at 9:00 a.m.’, we’re going to have to scroll up here to read the start of the question. ‘When an employee is close to the end of the number of sick leave days they are entitled to claim contractual sick pay for—an employee, in this case, came into work at 9:00 and then left at 11:00 and went home. The employer logged this as sick or is it correct it should log it as sick because they’ve done some work, a couple of hours’ work. Is this in order?’ The sick leave post doesn’t clarify if you turn up that you treat that as a sick day or a work day because you’ve done some work.

Seamus: I think the position is that it is recorded as a sickness. If the person only comes in to work for two hours, the reason they’re not able to continue to work any longer is due to sickness. Presumably, they’d be paid for the two hours they’re there and the remainder of the day, you’re probably going back to look at the provisions in the contract and whether there is a contractual sick pay that kicks in automatically or if it’s SSP, whether or not you’re looking at your four days in terms of before that kicks in.

Interestingly, there I suppose the issue is will that serve as a break and start as another? For the sake of two hours, I think the sensible thing to do would be to go back and look at are the sicknesses related. Are they coming from the same issue that has arisen in the first place? If they are, I would take the view that they’re related.

Scott: Or you could have something in the contract that says if you tell them it’s got to be a complete day in order to get something. So, it may come down to the contract. This one here, I think, would be where the employee has come back to work. He’s been working away and goes, “I’m close to the trigger. They’re going to discipline me.” So, trying to disappear and hope it isn’t treated as sickness, but it’s still an absence from work.

Seamus: It’s still absence. Yeah.

Scott: There should at least be a discussion. I don't know if I would fire somebody over this one.

Seamus: No. I think that you . . .

Scott: You do have a bit of leeway.

Seamus: I think you’d be wise to. But, again, within a lot of the civil service contracts, there are specified triggers in terms of absence. It really will come down to the working of the contract.

Q: An employee has informed us that the parent is very ill and they are expecting that they will need to take sick leave to look after them. If they submit a sick leave for disability, is there any recourse for the employer that they already know this isn’t personal medical capability for their employee?

Scott: We still have some more sickness ones coming in here. Now come back to the bonus question somebody’s left here. ‘An employee has informed us that the parent is very ill and they are expecting that they will need to take sick leave to look after them. If they submit a sick leave for disability, is there any recourse for the employer that they already know this isn’t personal medical capability for their employee?’ That’s a classic situation where if you are so concerned about a dependent, then are you set to be in work and that kind of employer, they know they’re going to take it, but the employee wants to go get paid to look after their parents.

Seamus: I think that you have to go down to what the reason for the absence is. It’s difficult in the sense that if you have made a disclosure to your employer and whether you’re a dependent or a carer for them or what the situation is, ultimately I think this will probably come down to is there a sick line put in and what the sick line says. It’s very difficult to argue with what the doctor puts down.

I know that’s a bit of a weak argument in a sense of people, the view might be that people can go to the doctor and get a line off the GP for anything. But I think that you would naturally have a concern where there’s been a discussion about this and there’s maybe an abuse of the sickness policy happening. It’s a difficult one to raise with the employee also because it’s such a sensitive period if they have a parent that is gravely ill. You would like to think there certainly is a conversation that has to take place with the employee in relation to that.

Scott: A lot of it comes down to the relationship with the employer. You’ve got this problem. I’ve got no problem that were sick. You’d be worried about them. Though, maybe not so worried . . .

Seamus: If you felt the employee had to take those sorts of steps, there’s lots of compassionate employers out there that I would imagine that if an employee approached them and said, ‘I’m going to have to take time off because my parent or my son is gravely ill’, I would imagine there’s a lot of employers out there that will pay the employee for it. Strictly speaking, of course, if you make the request, there’s no entitlement to payment and they can also dip into their holiday payment in terms of that. So, it does kind of break down into the fundamentals of the relationship between the parties.

Scott: Okay. We’ve got a late entrant in here just asking us because they arrived late, will we be sending out a recording of this and the slides, etc. Yes, we will and there will also be a transcript later on. So, you’ll get a recording of this broadcast in an hour or two once we finish and then you’ll get the transcript. Usually, it’s within a fortnight by the time we get them all back and checked them all and correct all the umm’s and ah’s in there.


Q: We have employees who receive a lump sum each month for attendance and adherence to break times the end of every month. How should this be applied to employees who are on maternity leave?

The next question that we have here, on a totally different subject, not totally different but quite different: ‘We have employees who receive a lump sum each month for attendance and adherence to break times at the end of every month. How should this be applied to employees who are on maternity leave?’

Seamus: That’s an interesting one. It’s looking at the contract and looking at the policy and deciding what exactly the payment is for. If it’s considered as pay, then they’re entitled to it under the policy. I would go down to the line of what the policy says in relation to whether it is statutory maternity leave or whether there’s an enhancement to that. So, if it’s reflective of the overall pay, it’s included with that.

Scott: Within the top-up.

Seamus: Yes.

Scott: Because it’s remuneration, it wouldn’t be part of the terms of conditions [that those on maternity leave would be entitled to].

Seamus: No.

Scott: Normally, all they’re getting is SMP.

Seamus: No. Absolutely.

Gender Pay Gap

Q: Gender pay gap reporting is causing a lot of concerns in Northern Ireland. But it appears it will not be required in Northern Ireland unless we get Stormont up and running again. Should we publish anyway or at least prepare the ground so we can publish quickly, assuming that Stormont ever gets going? What are the key differences between gender pay gap reporting in Northern Ireland and in GB?

Scott: Okay. Gender pay gap is the next issue. We’ll be going on to a quarter to 12:00, by the way, folks, if you’re listening in. But if you have to leave early, you’ll get the podcast shortly afterwards once we’ve finished. ‘Gender pay gap reporting is causing a lot of concerns in Northern Ireland. But it appears it will not be required in Northern Ireland unless we get Stormont up and running again. Should we publish anyway or at least prepare the ground so we can publish quickly, assuming that Stormont ever gets going? What are the key differences between gender pay gap reporting in Northern Ireland and in GB?’

Seamus: Well, to give the audience an indication there, the position is that gender reporting comes in GB in April 2018. So, we’re not far off from that date. We have legislation in place in Northern Ireland under the Employment Act, Northern Ireland, 2016. But it’s still in draft form. We have an issue just in terms of Stormont, as we know.

Scott: It’s a regulation to enforce that. It should have been in place, but it isn’t.

Seamus: It should have been in place and it isn’t. The reality is that we don’t have a crystal ball as to what’s going to happen to Stormont. But if we look on the bright side and the hopeful side of life, we would anticipate that this will be legislation that will be brought in sooner rather than later hopefully. So, absolutely, I think, for the answer to the question, it’s get your ducks in a row at this point. It is on the way. We know that. There maybe will be lessons that can be learned from what happens in GB, but get your ducks in a row. It’s a good idea. It’s a good starting point in terms of maybe having a look at what the scenario is going to be within your workplace.

Scott: There’s lots of other places. The government website you can go on and you can check all the gender pay gap reports that have been put up. There’s 700 or 800 of them at the moment. You’ve just got to publish certain figures in relation to male and female, but it’s different in Northern Ireland.

Seamus: There’s some key differences that are going to be made. In Northern Ireland, the legislation is planned to go further than it is in GB with a requirement that the companies here or the employers here publish information to include workers within each pay band based on their ethnicity and disability. The figure at the minute in England is that you have to have employees of at least 250 within your business or your organisation. Given the size and the population of the workforce in Northern Ireland, we would imagine that that’s going to be a reduced figure.

It could be something along the lines of 50 more employees that you have to report. So, I don’t think we’ll get away with the 250 aspect because the reality here is that here wouldn’t be that many reports that would be coming out. The other key thing is there’s a penalty that’s anticipated that will be enforced in Northern Ireland when it comes to if you field the report. The fine can be up to £5,000 for each employee.

Scott: So, that’s if you don’t publish the reports and you have 100 employees, that’s a fair chunk.

Seamus: Absolutely. It’s significant. I would imagine that there be some sort of view taken in terms of the size of the employer. So, if you’re looking at one of our larger employers, maybe the likes of Tesco or someone along that size who has a significant number of employees, you could be well into millions of pounds there. I would also have thought that there would be the aspect that they would consider the size and the resources of the employer in terms of is it your first offense. Those sorts of aspects I don’t necessarily think it will be a strict view of £5,000 per employee. There could be arguments that could be made on that.

The reality is that there is going to be the obligation to report and there’s the risk of non-reporting as well. So, I do think it’s a good idea. It’s an aspect that you should be monitoring. It is on the way, get prepared, get a head start to it, be ready to implement your reporting. I don’t think that you’re not obliged to report anything at this point. You may take a view that you don’t want to start reporting it until you’re obliged to do it, but we can look at the time period now that we have and the gift in that, and we can maybe look at our internal reports and see if there’s issues that are going to arise and maybe taking a step now to address them.

Scott: You don’t want to be the one with the worst pay gap in Northern Ireland.

Seamus: No. We don’t want to be identified. Yes.

Scott: Or something like that.

Seamus: That’s the thing. If it’s broken down into sectors, it will identify the good and the bad, if I put it as plainly as that. I suppose you don’t want to be identified on the wrong side of the fence if your comparator companies that do have the same business employees and they don’t have that problem, there’s no gap there.

Scott: You can at least do it on gender.

Seamus: Yes.

Scott: At the moment, the difficulty in Northern Ireland is it’s going to be very difficult getting ethnicity, even defining that and disability. You probably don’t know if your employees haven’t given it, if you haven’t gathered that information.

Seamus: You’ve never had to put it together before. That’s the thing. There will be all sorts of issues that will arise from it. But maybe we’ll get a bit of a lead-in period and see what happens in GB.


Q: My company is registered in Northern Ireland, but also has employees and operations in England, the Isle of Man and in the Republic of Ireland. Do we need the pay gap analysis in each of the jurisdictions in line with the requirements of each rather than for the organisation as a whole based on NI requirements?

Scott: Final question on gender pay gap, ‘My company is registered in Northern Ireland, but also has employees and operations in England, the Isle of Man and in the Republic of Ireland. Do we need the pay gap analysis in each of the jurisdictions in line with the requirements of each rather than for the organisation as a whole based on NI requirements?’

Seamus: Yeah. The short answer to that is yes. I think it’s a jurisdictional point and that you will be required to file reports for each jurisdiction that you’re in. I know that you could have employees and maybe the bulk of your work and the bulk of your employees are in Northern Ireland, but you might have a number that you employ in England as well and there will be a separate reporting position for it.

Scott: For England, if you have over 250 employees, you’re likely to have to report . . . well, GB is . . .

Seamus: Yes, GB.

Scott: It’s England, Scotland, and Wales.

Seamus: Yes.

Scott: The Republic of Ireland, they’re bringing it in at a level 50, it looks like.

Seamus: Fifty, yeah.

Scott: It’s not in place yet and there’s draft legislation and the Isle of Man I don’t think is covered. Assuming it is, there may will be a separate one for the Isle of man. Northern Ireland is the one where you may have the most employees, but at the moment, you’re not required to do anything, but it’s wise that you would get your ducks in a row. It’s going to come in. Any kind of government, they’re going to bring in this.

Seamus: It’s all about transparency at the minute. It’s inevitable, I think.

Whistleblowing

Q: Can HR challenge the individual’s assertion that it is a whistleblowing complaint at the point the complaint is made or can we dismiss where we think the complainant is acting in bad faith or may even be lying?

Scott: Okay. We’ve got a whistleblowing issue up next, Seamus. ‘Can HR challenge the individual’s assertion that it is a whistleblowing complaint at the point the complaint is made or can we dismiss where we think the complainant is acting in bad faith or may even be lying?’

Seamus: The whistleblowing legislation has been updated recently, just for anyone that’s not aware. So, from October 2017, our Northern Irish legislation has been brought in line with the position in GB. Really, the main thing there is the removal of the good faith requirement that we had at NGB. So, essentially, employees are no longer protected from the courts if the disclosure is made in bad faith and compensation then, if it is made in bad faith, can be reduced on the basis that there’s been a bad faith element to it. So, essentially, it doesn’t invalidate the claim, but it can reduce it.

I think from my own point of view in terms of whistleblowing, it’s something that I have noticed a significant increase in the past two to three years, particularly in relation to employment claims. My view is always that where there is a complaint made, that it should be treated cautiously and taken seriously.

Scott: There’s no limit on an award and you get injuries to feelings, effectively, for whistleblowing claims.

Seamus: Absolutely. I’ve had a couple of cases in the tribunal here. They’ve involved health and safety reports or reports to third-party statutory bodies or regulators and you look at the legislation and you do your best in terms of trying to deal with the claim that you have.

Scott: If somebody came to an employer saying, “That carpet is fraying and somebody could trip,” which is a genuine case in Northern Ireland that would be potentially a breach of a statute, health and safety at work that we’re looking at. Whether the person was motivated to have a go at the supervisor is neither here nor there.

Seamus: Irrelevant, yeah.

Scott: As far as it being a whistleblowing claim, it’s a genuine claim and therefore they are protected and you have to take it seriously because if they are dismissed, they have all the extra protections, including an unlimited award.

Seamus: Exactly. I think it’s important that where there’s a complaint, that it is investigated, that there’s a clear paper trail in terms of the investigation and that there’s an outcome in terms of that investigation as well. Now, the outcome could be, yes, you’ve raised a healthy and safety concern and we’re going to address it, but at times, there are circumstances that arise where there is a complaint, the employer doesn’t like it, thinks the employee is a troublemaker, any employment for less than one year and decides, “I don’t want this person in my employment anymore.”

That’s where I’ve seen the increase in the claims have been, ‘Well, they don’t have the statutory ability to bring the claim because of less than 52 weeks.’ The angle of the claim, then, goes straight away for health and safety or I made a report about something and since then, I’ve been treated in a detrimental way or I’ve been dismissed from my employment. Then you’re in the realms of the tribunal considering there was under one prospects in terms of outcomes.

So, I think that where you are . . . it’s perfectly fine and I don’t have any difficulty where there is a vexatious complaint made or where it’s deliberately done and where there are lies being told or something along those lines. If we look at the LRA code of practice, it gives us guidance to say in certain circumstances you can look at the disciplinary procedure in terms of employees like that. The rest will be that the employees’ counter-argument will be, ‘They’ve only dismissed me because of the fact they didn’t like the claim I raised.’ Then you’re into the tribunal time to work out where the right and the wrong is in the case.

In saying that, I think if you have a paper trail, if you have a record and a report and you have an outcome, it certainly helps your case in terms of saying, ‘Look, this is the reason for the dismissal. It wasn’t to do with any complaint they raised. It was this.’ So, I don’t think that we should shy away from disciplinary proceedings where they’re warranted, but I just think that we need to be careful.

Scott: There are lots of shades of grey, it’s a bit like the earlier question about sickness. How do you say that somebody doesn’t have disability or stress when they’re looking after the parents just because they told you, ‘I’m really worried about my parents, I’m going to have to go off on sick or take time off’? It’s very difficult for an employer to turn around and say, ‘I know you’re lying about whistleblowing’ unless you catch them in some kind of way.

Seamus: Yes. The evidence will need to be there to support that.

Annual Leave and Sickness

Q: Accepting there is a huge difference in the amount of fine potentially payable in Northern Ireland to GB, surely any claims to a tribunal would have to be made within the three-month time limit from the last missed holiday entitlement.

Scott: We’re going to move on to annual leave and sickness. We’re going to move on to a question here, which I suppose points out again the difference between GB and Northern Ireland. Accepting there is a huge difference in the amount of fine potentially payable in Northern Ireland to GB, surely any claims to a tribunal would have to be made within the three-month time limit from the last missed holiday entitlement.’

Seamus: We’ll just give it a bit of background in relation to this. First of all, listeners in Northern Ireland might be aware that in England and Wales, there’s been a reduction so that you can only bring the claim for two years. There’s a limit there of two years in relation to it. That’s just an amendment under the employment rights, 1996, the act.

Then the case is with the Bear (Scotland) and British Airways Cases, employment tribunal cases and things like that, where the liability was so massive because there didn’t seem to be any limit on it, but that’s been brought in. That’s not the scenario in Northern Ireland. We’re still left with there’s no two-year limit there or anything like that. We’re still left that we can bring the claims here in Northern Ireland.

Scott: So, listen for unlawful deductions. ‘I haven’t had my holiday pay. You haven’t paid it for the last six years. I want six years’ worth of money.’

Seamus: Yes.

Scott: That’s perfectly acceptable, subject, perhaps, to this three-month limit because you only have three months to take a claim.

Seamus: You have only three months to bring the claim. That’s the principle. That’s where you’re at. I suppose you need to be careful in terms of where there’s an unlawful deduction of wages that is happening every month in the salary and you need to be careful in terms of your timeframes in terms of that as well.

The other thing that strikes me about that question is that if it’s an unlawful deduction of wages claim, it can also be a breach of contract claim that an employee could seek to bring in the court system. And if it’s a breach of contract claim, they would have six years in order to bring the claim in any event. So, I wouldn’t necessarily hedge all my bets in saying we’re all right because there’s a three-month time limit there for it.

Scott: There’s another issue which is the Sash Windows case that went to the European Court very recently.

Seamus: That’s right.

Scott: They said that where you incorrectly register an employee . . . so, you call them self-employed where they’re not a self-employed contractor, they’re really a worker or employee, then there is no limit because you’ve denied them a fundamental right to get the four weeks’ holiday. It’s only the four weeks’ holiday we’re really talking about. It’s the working time directive holidays.

Seamus: Exactly. But still, there could be a substantial liability in there for anyone.


Q: We recently dismissed an employee who’s been on sick leave for six years. When we contacted our payroll, they said there was no holiday pay owed. Are we obliged to pay a certain amount of holiday pay even if this employee hasn’t worked for six years?

Scott: So, here we have got a large number of so-called self-employed contractors, but they’re really under the control of the employer. So, they face a massive bill going back many years.

Okay. The next question that we have here is, ‘We recently dismissed an employee who’s been on sick leave for six years. When we contacted our payroll, they said there was no holiday pay owed. Are we obliged to pay a certain amount of holiday pay even if this employee hasn’t worked for six years?’

Seamus: Well, I think ultimately there is an issue. I mean, I’m not saying that it doesn’t happen, but there is an issue there where you have an employee out for six years and the matter hasn’t been dealt with if they’ve been out for long-term sick leave. You would hope that as of good practice, there would be appropriate steps taken in terms of resolving that. Maybe there is holiday pay that has accrued. I don’t necessarily think that it will be in any way close to six years that will be owed. We’re probably talking within the past year and maybe the 18 months and figure common out there. Certainly, where there is an employee that’s off on sick leave, their holidays accrue during that period. We know the various case law that substantiates that.

Scott: The carryover isn’t for the full six years.

Seamus: No.

Scott: It could be over 18 months plus whatever this year is worth.

Seamus: Yes. Exactly.

Scott: If they haven’t taken it, it would continue being there. There is an issue about frustration. If there hasn’t been contact with people, do they still have an extant contract?

Seamus: Yes, exactly. With frustration of the contract, you’d be looking at . . . six years is a very long period, but you’d be looking at maybe getting the support of medical evidence and finding out why the person hasn’t been able to work for six years and trying to deal with that. A lot of employers, and certainly from what I see now, where there has been a sort of lengthy enough period of sick leave, they’ll have their employee examined, they’ll see if there is a foreseeable date for returning to work where there’s not that try to force the issue in terms of frustration of the contract because they know the liability is continuing to build on holidays.

Scott: Some employers just don’t want to pay the notice because if they dismiss somebody due to ill health, it’s not certain but in this case, you’ve got to have at least six weeks’ notice. It could be longer if they’ve been employed for 12 years it could be up to 12 weeks.

Seamus: Yeah.

Scott: We’re going to leave it there, everybody. Thank you very much for listening in. Thank you to Seamus and all the listeners. Spread the word to anyone who wants to listen. You’ll be getting a survey. Please answer the questions via the survey or leave some questions. We’ll try and get through as many as possible. The next webinar with Seamus will be on the 2nd of March. Again, it’s a Friday at 11:00.

You’ll get the podcast very shortly for any of those that arrived a little bit late. You’ll also get the transcript. If you want to look back at any older ones or check any answers that we had before or any questions, just search ‘webinars’ on the Legal-Island website. There were a couple of questions here that were quite complex. If you want to get in touch with Seamus directly, you can get in touch with him - seamus.mcgranaghan@oreillystewart.com.

Seamus: That’s it.

Scott: Hopefully, we’ll see you in a month’s time. Thanks very much, everybody. Bye, bye.