Disciplinary Issues; Medical and Caring Issues; GDPR; Annual Leave; & More

Posted in : 'Any Questions' Webinar Recordings on 5 January 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

'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, discussed questions on the following issues with Seamus McGranaghan, Director at O'Reilly Stewart. Click on your preferred topic to go straight to the question and answer in the transcript:

 

Transcript

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

Good morning, everybody. It's Scott Alexander here from Legal-Island. Happy New Year to you. This is the first of our monthly series of broadcasts that we're going to have with Seamus McGranaghan from O'Reilly Stewart. So it will be the first Friday of every month if you want to put it in your diary, always at 11:00 in the morning. We're only going to change it if there's a holiday. Good Friday obviously we will be changing.

Now, you can send in questions through the chat box, anything you like. Or you can get in touch with us afterwards or in advance of the next one. Quite a lot of people have sent me emails to scott@legal-island.com. We're dealing with a number of those questions as we go through. You'll be getting a podcast of this broadcast within an hour, I'm told, and you'll also get a little survey. We'll ask you what you think, and you can submit questions in that survey as well, so we get a bit of a head's up.

The written transcript should appear in the next week or two and you'll be able to search that as well for future reference. If you go on the website, you'll see recordings of the previous webinars that we've had and the transcripts as well. So you'll be able to click on a question that you like, and it will take you directly to that particular answer.

So, Seamus, good morning to you.

Seamus: Good morning, Scott. Happy New Year to you.

Scott: Happy New Year indeed. One of the questions we got that we thought was particularly interesting that we've been doing is a disciplinary issue. As we go through, Seamus, we're going to go through a number of questions on a number of topics, but we're going to skip, for those that are listening, the ones that we think are maybe the most topical or interesting or challenging and then we'll go back and deal with them.

What we're going to suggest, audience, if you have time, is we might extend this to 45 minutes. If you have to go after 30, that's fine. You'll be able to get the podcast and be able to listen to the last 15 minutes or you can go to the transcript and just go to the questions that you might have missed.

Disciplinary Issues

Q. "We gave a warning to a number of employees for finishing their shift early. One of the employees has appealed the warning and says that it is unreasonable because only a handful of the workforce was given the warning and the shift manager could only identify certain employees and we had no CCTV evidence, although we have no doubt there were others involved."

Keywords: Warnings; CCTV Evidence; Identifying Certain Employees; Reasonable Investigation; Burchell Test; Culture of Organisation

So the first question that comes up, Seamus, came in from one of our listeners.

So, Seamus, does the employee have a point? What is considered the minimum recommended action the investigation manager should have taken in relation to trying to identify the other possible wrongdoers? Finally, does the fact that we could only catch a few in the act mean that we can't take action against any?

Seamus: This is a complicated question. I'll just try and simplify that because I did have an opportunity to read it in advance. We have a basic situation here where there are a large number of employees that all conduct the same act. The problem with the employer is that there's no CCTV footage available and there's only the evidence of the line manager at the time and the line manager can't identify everyone in the group but was able to identify a certain number of people, probably the closest within his eye view at the time.

So we have a situation where the employer is aware that there is more offending employees but doesn't have the evidence in order to bring those allegations to all of the employees, only the handful they're aware of. The first circumstances that we would have to look at is we go back to our basic case law. Any disciplinary matters that I've been involved in, in the tribunal itself, the good old case of Burchell, which is the British Home Stores Ltd v Burchell. We're going back a fair distance here. But this really is the main case for how an investigation should be dealt with.

Burchell gives us three main principles. To shorten them down, it's essentially:

  1. Did the employer have a genuine belief in the employees' guilt?
  2. Did it have a reasonable ground for that belief?
  3. The last one, at the time that it held the belief, had the employer carried out as much of an investigation that was reasonable in the circumstances?

Scott: Reasonable investigation changes from instance to instance.

Seamus: Absolutely.

Scott: This one here assumes that there's only been warnings that have been given. It's not that there's three or four dismissals taking place. So the investigation probably wouldn't be as expensive and not quite as important. I'm not saying you don't have to do it, but it wouldn't be as vital in this case as if you were facing dismissal.

Seamus: We're limited here given the facts of the matter of the amount of investigation that can be done. We're clear that there's no CCTV available. So we've only really got the evidence of the line manager and who that line manager could identify and couldn't identify. We are talking about a reasonable investigation, we're not talking about the level of a police investigation or what a criminal court would look at in terms of being satisfied.

We're talking about a reasonable investigation that any employer would carry out in the circumstances, essentially. The investigation element is important. Although it's not one of the three steps for the statutory dismissal process, code of practice in [inaudible 00:05:31] is very clear about the investigation. Certainly, I've had cases that we've lost on the basis that the employer did not carry out a sufficient investigation.

Trying to bring that along and develop it because we're dealing with a large number of employees, we had a brief look at the subsequent case law that's happened since then. There's the 1981 case of Monie and Coral Racing, which involved a large number of employees. The Court of Appeal stated in that case that the Burchell principles don't apply when there's more than one suspect involved in the misconduct.

The issue with Coral was that it was all readily identifiable from the evidence, the circumstances of the case. It was clear that it was only those employees that could have committed the misconduct and it was clear that it was this group that it impacted upon.

Scott: They had lots of evidence based on finance. Money had gone out and they knew it could only have been people who worked in that betting shop.

Seamus: Yes, exactly.

Scott: They sacked everybody there.

Seamus: That was it. Yes. We move further along there to the [inaudible 00:06:32] of 1990, which was an Employment Appeal Tribunal case. That's maybe relevant for a question later on in the day, but it essentially set out further guidelines for tribunals to consider, whether these kinds of cases are blanket cases. Essentially, it was weakening the position somewhat from what Burchell had said.

But I think for these particular circumstances that we're dealing within in this case, I would advise caution of issuing a blanket, say that it was a grouping of a certain amount of employees, say it was 30 employees in one particular department. The employer was of the view that the majority of them had done it or certainly it looked to the manager that they were all involved.

I would be very careful about the advice I would give to the employer to issue a blanket outcome in terms of this. I think we really have to strip it back. Bearing in mind Burchell, which is what the tribunal will look at, we'll look at the evidence that we have. It's the unfortunate circumstance in this one that although we suspect that there's more people involved, we only have evidence in relation to a limited number.

Scott: Those three or four can still be disciplined. It doesn't invalidate that they got caught in the act.

Seamus: Yes. I think there's an argument raised of, "Why should I be punished when everybody else that did it isn't being punished?" and you're throwing that out there looking at it from a reasonable standpoint and saying, "Well, we don't have the evidence to support it for everybody else, but we do for you. I think certainly in this circumstance, the employer would be justified in bringing this sanction against the people that it has the evidence against.

Some people might call the other people lucky that they've got away with it if they were involved in it. Certainly, you might get a circumstance where an employee will come forward and say, "Listen, if I'm going down, I'm bringing everybody else down with me and here's a list of people that were involved in it." Again, you're going back to, "Yes, that adds a little bit more evidence, but is it credible evidence? Is the person being vindictive?" I think without admissions from those other people, you're going to struggle to be able to substantiate that you're [inaudible 00:08:40].

Scott: Seamus, there's maybe a longer-term issue that the person who wrote in might want to consider and that's really, I suppose, the culture or the morale within the organisation where a sizeable chunk of employees want to clock off early or lay down tools or whatever that happens to be. There's a motivational issue here.

At Legal-Island, we have a new employee starting at the end of the month. She'll be looking more into those transformative issues when it comes to HR. So, if you'd be interested in doing webinars on those issues, you can drop us a line either on the chat box or scott@legal-island.com, and we'll take those ones up and look at those, but those are not employment law issues. Those are really about engagement with the workforce.

Seamus: Yeah. I think that transforming the workforce is what we're looking at. My only other point, Scott, just in terms that would be, I think that it would be important for the employer, whether bringing all the employees together or issuing a general memorandum to all the employees, it's important that everyone is reminded about whatever the rules are and what they follow and that if it happens again, there will be serious sanction for it just to make it clear for all the employees and it might settle some of the employees that are feeling that they've been [inaudible 00:10:01].

Scott: Okay. Thank you very much, Seamus. Just for a little reminder for anyone that's arriving late. I see those few late arrivals. Scott Alexander here from Legal-Island and I'm chatting with Seamus McGranaghan from O'Reilly Stewart. We're going through a number of questions that have been submitted by listeners.

If you've missed the discussion so far, we will be issuing the podcast. You should have that within an hour or two of this broadcast and if you have to leave early, anything that you might have missed will also be on that podcast, so you can listen to that. And we'll be doing a transcript, so you'll be able to go to the website and check out the questions that you might have missed.

Q "We have a range of disciplinary sanctions. Other than warning letters and ultimately dismissal in our contracts of employment, are unpaid suspensions still acceptable as a disciplinary sanction? What about disciplinary transfers or demotions?"

Keywords: Disciplinary Policy; Disciplinary Sanctions; Transfers; Demotions

So the second question we have here, Seamus, is, "We have a range of disciplinary sanctions. Other than warning letters and ultimately dismissal in our contracts of employment, are unpaid suspensions still acceptable as a disciplinary sanction? What about disciplinary transfers or demotions?" The alternative in these cases would be dismissal in the most extreme of those.

Seamus: I think the important document to come back to whenever you're dealing with any disciplinary is obviously the disciplinary policy and procedure the employer has in place. Really, that should set out all the possible sanctions that are open to the employer. You'll typically see in the disciplinary policy they'll maybe categorise examples of minor misconduct, gross misconduct.

Really, we're looking at the more serious sanctions here probably of gross misconduct that will be liable to dismissal or summary dismissal, so it's important that there is a range of options open to the employer there. I think the first thing that I would say on that, sometimes I will see a lot of disciplinary policies that will simply have options of verbal warning, first written warning, final written warning, dismissal with notice or summary dismissal. You'll not see so much the options of whether the option of transfer or demotion.

So bringing it back, maybe have a review of your policy at this stage and make sure you do have the option of doing that. So if it's not in the policy, I think it's a problem for you. Where it is in the policy, obviously, the statutory dismissal procedure has to be followed. So we're talking about our one, two, three procedure here. You should be ticking the boxes in terms of the very general things that are required, and the minimum requirements required under the law.

Scott: One of those minimum requirements is you write to the person and tell them they could be dismissed.

Seamus: Yes.

Scott: That's a breach if you don't do that. In this situation here where you have alternatives to dismissal which are higher than a warning, they have to go into that later as well.

Seamus: Absolutely. So the employee should be clear what the allegations are against them and what the possible outcomes could be. Sometimes clients will say to me if we put that in the letter, does it not mean that we completed that already. You're saying no, these are the options and the employee has to be aware of the severity. One of the ways of getting the point across is to tell them what the sanctions could be. I haven't advised in a case where we've put someone on paid suspension as a disciplinary outcome.

Certainly, we deal with suspensions where the investigation or disciplinary is ongoing. Again, that's always the exception rather than the rule. There should be specific circumstances for putting someone on suspension where that's ongoing. But I am aware of cases in the past and case law in relation to where an employer has deemed an unpaid sanction for maybe a week or a month. That's acceptable, as is a disciplinary transfer.

Demotions and transfers will come up where there's maybe been issues of harassment and it's not possible for the employees to work together any longer. If there's a finding that one of the employees has been doing harassing, rather than dismissal, they might say, "We're going to transfer you across. Demotion is also a perfectly acceptable outcome as well." Again, you must have it in your disciplinary policy and procedure.

Medical and Caring Issues

Q "Can I insist that a medical and absence information is received prior to making an offer of employment? I can make an offer dependent on receiving satisfactory references. Can I do the same in relation to absence records or someone undergoing a medical examination or sending me records from their doctor?"

Keywords: Medical and Absence Records; Justification

Scott: Okay. We're going to move on to a different subject now. We have been meaning to deal with an apprenticeship, maybe. We'll come back to that if that's okay. We want to move on to medical and caring issues. The question we have here is, "Can I insist that a medical and absence information is received prior to making an offer of employment? I can make an offer dependent on receiving satisfactory references. Can I do the same in relation to absence records or someone undergoing a medical examination or sending me records from their doctor?"

Seamus: This is an interesting question, certainly. Sometimes employers that have maybe had issues arising in the past from recruitment, they might start wandering towards what we need to get with pre-employment medicals and things like that. I think the employer does need to be careful in terms of these circumstances. If there is going to be a request for a pre-employment medical, I think that it should be appropriate. The job should be necessary. I can imagine someone that has to have a certain level of fitness in the likes of the firefighting services or ambulance workers.

Scott: Sport clubs, all that kind of stuff.

Seamus: Yeah. There's a requirement for a pre-medical and the employer has to be satisfied that they're fit to be able to do the role. If it was a simple, straightforward role, desk job, I would struggle a wee bit with wanting to know why a medical is necessary. So, it's all about the justification of that.

Scott: What about something that you've got the justification, but what about just absence records? I want to make sure that Seamus McGranaghan hasn't been off three out of the last nine months. I'm not going to offer you a job or if I do offer you a job, it's going to be dependent on me seeing those records. Is that fair enough?

Seamus: Certainly. You might put out a general request as an employer for a reference. You might get some information back that deals with the absence because maybe the previous employer has been happy with it. You need to be very careful with that from a discrimination point of view.

If you send someone off for a medical or ask for details about their prior absences, there could have been disability involved, whereby reasonable adjustments have been put in place by the prior employer. Or there could have been some dependency issues in terms of if they had a sick child or a parent to look after. You don't want to get into a position where you are reading absence records deciding that the person has a bad track record here. We no longer want to hire them.

The start of this question, I think, asked about insisting on the medical and absence records in advance of making the offer. I would normally say the offer is made first and it's made subject to satisfactory references or medicals or things like that. I think that as an employee, you need to be very careful about asking for absence records. I could potentially see a lot of issues arising.

The other thing about medical records is that if you have a female and you get a medical and the medical comes back to identify the female has been pregnant and all of a sudden then they should withdraw all of an offer of employment, then are we looking at...

Scott: Automatic discrimination.

Seamus: Absolutely. I think a lot of thought has to go into why do we want the medical, are we justified in getting it? Around absence records, I would be advising to take a very cautious approach with that. The employee might not be satisfied or happy with you making such a request on the basis they're [inaudible 00:17:42].

Scott: You might lose your best employee.

Seamus: Absolutely.

Q. "If an employee rings in sick on a day they have previously requested off as a days' annual leave, should this be taken as a sick day or should it still count as a holiday?"

Keywords: Sickness and Absence; Annual Leave; Right to Recategorise

Scott: I have another question here, Seamus, on sickness. "If an employee rings in sick on a day they have previously requested off as a days' annual leave, should this be taken as a sick day or should it still count as a holiday?" They booked it in advance. It's supposed to be a holiday. And then phoned in sick and said, "Hold on, I'm sick. I can't take my holiday."

Seamus: This has come back to some European decisions that were made quite a time ago. The basic position is that if I have booked off a holiday, if I have booked Monday off as a holiday and I'm sick over the weekend and I'm unable to attend work on Monday, but I would have been off anyway for holiday, I'm entitled to ring my employer and say I'm unfit and I'm sick and I'm entitled to not to be treated as a holiday and to take the holiday somewhere else, maybe further on down the line so that I'm not losing the benefit of my holiday. That's the clear position in terms of what European law has told us.

Scott: It's clear in case of case law. Legislation doesn't . . . it's not specified anywhere, but the fact is that if you denied somebody their entitlements, they could go to tribunal. Northern Ireland tribunals have been following all the European jurisprudence as well.

Seamus: Absolutely. This is the idea behind the cases of Stringer and Pereda at the time. But it can complicate the situation because you can sometimes have people that are able to go off on holiday while they're sick. Maybe they have a broken arm and they can still go on holiday. It's really about investigating and talking to the employee about the situation arising at the time.

The other thing you need to be careful about is these judgements only apply to the statutory holiday period. So, if the person has used their statutory end days including their bank holidays, usually they're left with the 20 days and they've already used that, it doesn't apply to those days above and beyond.

Scott: It may not even apply to the full 28. It might just be the 20th.

Seamus: Yes.

Scott: So the additional eight days that you get in the UK, I suppose the employer can say they don't apply, but then you end up with an inconsistency between what would be the statutory four weeks and whatever extra that you get.

Seamus: Yeah. And again, you're going back to the motivation of employees and agree that they're losing it on their holidays because they haven't been able to take them due to sickness.

Scott: The law gives the employees effectively the right to recategorise a holiday as sickness absence. They end up with a work sickness record. They may be disciplined or taken through an absence procedure because of that, but what about the reverse. You've got somebody who's off sick and they say, "My record is looking terrible. Can I use up holidays for that?" What's the situation?

Seamus: It's a decision for the employer, ultimately. I had some issues just from advising clients in the past in terms of where you maybe get your classic Friday/Monday person and they will ring in sick and they'll say, "I'd like to use this day as a holiday instead." You don't want the reverse happening in terms of people trading the days around the other way.

Scott: They won't get the benefit then of the holiday.

Seamus: Exactly. And also, then, it can create a culture of people saying, "It's all right because I can take the day and I don't need to give any notice for it or ring up in the morning. You do need to be careful about it, but the basis behind the case law is that holidays are there for people to recuperate, to have some downtime, coming from a healthy point of view and that they're entitled to take that.

Q. "If an employee phones in stating a death in the family, which turns out to be a cat she has had for 20 years, what can you do?"

Keywords: Bereavement Policy; Pet;

Scott: Okay. We've just had a question in on the chat box there, so we'll go directly to that, Seamus. You've had no prior warning of this. I hope you're [inaudible 00:21:35]. That was an ambulance going through a minute ago. This is live, folks. That's why you hear things from Belfast City Centre. "If an employee phones in stating a death in the family, which turns out to be a cat she has had for 20 years, what can you do?" I had a cat for 15 years and I cried bottles when they died. That was my best friend growing up. You better come up with a good answer here, Seamus.

Seamus: Yeah. Again, the position comes back to usually within the handbook the employers have, it will cover off circumstances for death, not to say it's always [inaudible 00:22:14] for people and for humans. I think that you have to go back to the issue here. If the person feels that they can't attend, is it because they're too unwell to attend work and then it's sickness?

I always thought there's a balance there to be struck if it's one day, it's fine, but if it starts to stress into a longer period of time, equally I could also foresee where someone maybe does become unwell because of the death. Maybe they live alone and maybe they sink into ill health through depression because of the loss. They really would have to be getting medical evidence, occupational health reports.

Scott: You certainly wouldn't have the right to time off under any bereavement policy unless it's been built into the contract.

Seamus: Certainly, the legislation doesn't cover for the circumstances.

Scott: There was a move in California, I remember. They introduced paw-ternity leave, which was for animals that had died. People do get attached. My dog was put down this weekend. You know I talked to you earlier before we broadcast. It was a very sad thing, but not as sad as my cat dying many years ago. I've matured and become hard since then.

Seamus: It could be that with employers and proven employee relations that there maybe will be something in the handbook out there that will cover that, but nothing that I've come across to date.

Scott: You still have to be sensitive. There are people who are very attached to their animals. Just be sensitive. Otherwise, they end up becoming demotivated, "You don't care about me. You don't understand."

Seamus: It's not great for the overall relationship.

Scott: There was one thing we mentioned at the last webinar just to bring up there, there's going to be changes to the childcare vouchers from April this year. We'll be holding a special webinar with Claire Marley from Legal-Island and Chris Briggs from Employers for Childcare and that will be on the 22nd of January. We'll send you notification of that if that's of interest to you. If you have caring responsibilities or if you have employees who use childcare vouchers, then you can listen in to that one as well.

Data Protection and the GDPR

Q. "Do I have to register with the ICO, that's the Information Commissioner's Office or anyone else?"

Keywords: ICO Registration

We're going to move on to the GDPR, the General Data Protection Regulation. Now, we covered a number of key points and recommendations in the last broadcast, so people should be able to get that on the website, but one of the questions here that came in was, "Do I have to register with the ICO, that's the Information Commissioner's Office or anyone else?"

Seamus: The basic position is certainly under the existing legislation, DPA, the act requires every data controller and that's whether they're an organisation or a sole trader who are processing personal information to register with the Information Commissioner's Office. There's a fee that is paid. There's a form you can complete online and pay the fee and you're registered then with the ICO as a data processor.

There are some exemptions to that, but I had a look at the ICO website recently for a client and the threshold is very low. Simple things, if you have CCTV on your premises, you automatically have to register. So, there may be some exemptions available there. But in the general . . . I would have thought for our broad base of our listeners, there's a requirement to register and you should register.

Scott: There's various registrations for people who require a data protection officer, a statutory one as well. We can cover that. But that's on the ICO website. The other question that came in here on GDPR and then I'm going to go back to a sickness question that's just come in on the chat box, "Can I get a badge that says I am GDPR compliant?"


Q. "Can I get a badge that says I am GDPR compliant?"

Keywords: Badge of Compliance

Seamus: Well, GDPR comes in later on this year. It's just around the corner. We are getting a lot of queries from clients about it and we're doing different seminars and things like that. I have not come across anything where you're able to get a badge from any of the Information Commissioner's Office to say that you're GDR compliant.

I would be surprised if anything like that is issued because as we know GDPR is continuous. It's a living thing. You could be compliant one day and not compliant the next. I would have thought they would be very restrictive in categorising anybody as compliant. It's an ongoing test. The obligations are ongoing. I don't see that's going to be something that you're going to be able to get to put on your window or put on your website or anything like that.

Scott: Okay. If you are interested in learning about GDPR, Legal-Island, of course, does GDPR e-learning. You can find out about that on the website as well for all staff. We have data protection and we have an event on the website on the 14th of March where we're focusing on how the HR departments can get their house in order and be GDPR compliant.

Annual Leave  

Q. "If an employee phones in to say they are sick and wants to reclaim their holiday, can I insist on them producing a medical certificate to cover the sickness?"

Keywords: Sickness and Absence; Medical Certificate

We've got another question in here on leave, "If an employee phones in to say they are sick and wants to reclaim their holiday, can I insist on them producing a medical certificate to cover the sickness?"

Seamus: The basic position there is that again, go back to what your policy procedure is. The general position will be that if you're sick for longer than the seven days that you have to go and get a GP line at that point and that's a fitness to work. So, if your circumstances are for the one day that you don't require it, you can't just change it now because the person wants to not use it as a holiday instead. It would be the same threshold that would apply there.

Scott: Moving on to another area, then we'll come back. I see there's another couple of questions coming in on the chat box, but this one ties in with annual leave and such lately that we've been dealing with. What should be paid in annual leave in the private sector, guaranteed overtime, voluntary overtime, allowances, etc.?


Q. What should be paid in annual leave in the private sector, guaranteed overtime, voluntary overtime, allowances, etc.?

Keywords: Annual Leave; Overtime; Allowances

Can you give us information about annual leave calculations, travel time in the public sector, constructions and utilities in particular?" I suppose implicit in the question is, does the European court jurisprudence apply in the private sector if legislation has not changed in Northern Ireland or indeed the UK?

Seamus: The position is that there would be no difference in terms of how it would be applied in either sector. Really, we're going back to the Dudley case. We covered this our very first podcast that we did. The basics of Dudley are saying that when it comes to annual leave and holiday pay, that it should be reflective of what the employee is normally working.

So we're talking about a circumstance of the employer looking at the usual position for the employee and our standard position is that we would normally look back across the 12-week period or as it came to Dudley over five weeks, but you're looking at things that are voluntary overtime the employee may be doing and it may be very regularly that they are actually doing 45 hours rather than 40 hours a week so that their holiday pay should be reflective of what the normal and usual position is there. That decision has been very clear in that respect.

Again, nothing specifically here in Northern Ireland about it. We're following the lead from Europe and from the UK, but certainly I don't think that you'd want to put yourself in a position of a test case here in terms of it.

Scott: Okay. I see there's a question on the chat box about wages. We'll try and get back to that before we finish, but if we don't, everybody out there, you can contact Seamus. Just go to the O'Reilly Stewart website. We'll send out the contact details as well. There's another question in here slightly different. "Please provide clarity on payment of wages for adverse weather conditions." So, quite topical, it's freezing outside.


Q. "Please provide clarity on payment of wages for adverse weather conditions."

Keywords: Adverse Weather Conditions; Policies; Rights of Employers/Employees

Seamus: Absolutely. We did have those couple of days in December where there was snow and maybe people are late getting into work or some people unable to get into work at all.

Scott: We're already on storm Helena. We're on E already.

Seamus: That's it. I see various images of what's happening in New York at the minute as well. It tends to be here that when there's the slightest bit of snow that we all have difficulties getting into work.

Scott: It's a motivational issue.

Seamus: The general position is the large extent, the rights of the employees affected by the weather and things like that, it comes down to who decides the responses to the weather. It comes down to, for instance, say we're all in work and at 3:00, the employer says, "We're closing today at 3:00 because the weather is so bad," there would be an obligation of the employer taking the step to close and therefore, there would be an entitlement for the employer to their regular pay up to 5:00pm. if that's what time they work.

But if the employee came to the employer and said, "My last bus is leaving to get home today at 3:00, I can't get one later on and I have to leave early," I don't see that there would be an obligation for the employer there to pay the employee for that. Say in that, we do need to look at the motivational side of things.

Generally, where employees have made an effort to get into work, the employer would appreciate that. They might be saying we're going to have to close early, as many offices did back in December, they would be saying, "We're making the decision here," even if employees are saying, "I'm going to have to go now," the motivational aspect of it would be appreciated, I would imagine, if employers were to support their employees in terms of that.

Where there are specific times where the employer isn't able to be open, sometimes it will be in the contract that they will be able to facilitate short time working, definitely I've come across well-drafted contracts that will have terms in that and there will be an option for the employee/employer at that point to say, "We're going to short time working," basically then you're looking at your limited periods of pay in terms of that. I think it works out to £25.90 a day for your protected pay and it can be done over five days.

Scott: That only works for complete days.

Seamus: Exactly. So the circumstances might suit the employee and the employer well.

Scott: If the employer is open, ready for business and the employee just can't get in, there's no obligation.

Seamus: It's the employee's loss at that point.

Scott: Going back to those relationship-type things and maybe allowing thing to take a holiday or something like that so they don't lose any pay would be in the interests of the employer as well as the employee. So it's kind of working reasonably. There's information on adverse weather conditions on the Legal-Island website. We sent out an email. So anyone that subscribes to the Legal-Island updates can find information by putting in the search box there.

Jurisdictional Issues

"I do not have experience of practicing employment law in Northern Ireland, only in England and Wales. If I start to work in Northern Ireland, will I be relying on NI or England and Wales case law?"

Keywords: Jurisdiction; Practice and Procedure

The other question, we'll go back to a few of those and we'll take one here on wages that I see sitting in the chat box. This is not me writing it, I have many years of experience, but this questioner says, "I do not have experience of practicing employment law in Northern Ireland, only in England and Wales. If I start to work in Northern Ireland, will I be relying on NI or England and Wales case law?" Which particular set takes precedence?

Seamus: Well, thankfully, there's lots of resources available to anybody that may be new to employment law or may be coming back into this jurisdiction. Largely, there isn't a massive difference between what goes on in Northern Ireland and outside in the UK. In terms of this question more specifically the authority of our courts and tribunal services here, the basic position is we are our own jurisdiction here.

Our industrial tribunal and fair employment tribunal arrives at its own decisions and gives its own case law in terms of that, same as our court of appeal does. But certainly, from experience, very much England is a bigger place, England and Wales and certainly there would be a reliance upon the case law that's available there. I'm using it really as precedence to provide to our courts and tribunals.

Scott: It's so persuasive that they're still mentioning Burchell and BHS from 40 years ago.

Seamus: Forty years ago, yes. So that's exactly the word, that it is persuasive. They're not tied to it, but certainly it is persuasive. There are differences out there in terms of what our court of appeal has issued and what they have done in England or maybe that we've touched on the issue first of all and that we're maybe the guiding precedent for it. But certainly, they're not buying that, but they do take cognisance of it. They do find it persuasive.

Scott: What I have certainly found, Seamus, is that tribunals do not like anyone going into a Northern Ireland tribunal and quoting English legislation, talking about the Employment Rights Act as opposed to Employment Rights Order.

Seamus: Yes, certainly the legislation doesn't apply here. Anyone that's looking at settlement agreements, compromise agreements, termination agreements, whatever jurisdiction you're in and whatever you call them, if you're an employee in Northern Ireland and this is where your contract is based, then your compromise agreement should be based on NI law and not on any English legislation or anything like that. But certainly, the case law, there can be some overlap in relation to it.

Scott: There can be. There are also several differences in legislation as it applies. Trades Union law, for instance, very different now.

Seamus: Absolutely. Even the fact that we have an FET...

Scott: Fair Employment Tribunal.

Seamus: And in England, they just have the Employment Tribunal. Obviously in England as well, they have the employment appeal tribunal, which we don't have here. As a practitioner, you would look to the EAT decisions and we've mentioned them already here today. You look to them for support and guidance in terms of what your issue is.

Scott: Thank you very much. We're staying for another ten minutes if you can. If you can't, thank you very much for listening so far.

Apprenticeship Levy

Q . "Could you give us some information on how the apprenticeship levy works in Northern Ireland? I understand there is no online accounts system to bank and drawn down contributions. So what's new about apprenticeships in Northern Ireland?"

Keywords: Apprenticeship; Contributions; Position in NI

We're going to look now at apprenticeship levy. I hope you haven't forgotten about that question there on wages. We haven't dealt with any apprenticeship levy questions. We've got a couple in here that came in. "Could you give us some information on how the apprenticeship levy works in Northern Ireland? I understand there is no online accounts system to bank and drawn down contributions. So what's new about apprenticeships in Northern Ireland?"

Seamus: There is a distinction between what happens in England and what happens in Northern Ireland. I can understand why someone would have a query about it. So just to run through this quickly, the Levy for all employers, they have to have an annual wage bill of more than £3 million or if they have that, they have to then pay not 0.5% of their staff costs into what's called an apprenticeship fund. So the money goes into the fund and then the debate is what happens with the fund after that.

So, essentially, businesses can then draw down on the fund and the government top of the fund as well. That leads to finance trailing. Employers with a pay bill of [less than] £3 million don't have to contribute to the levy, but they can still have access. If they want to have access to schemes or training, they can do that. It's collected by the treasury, but use of the funds . . . so, in England, what happens is that the companies have access to what they call the digital voucher process and it really is dependent upon what they put in as to what they get out. We don't have that system here in Northern Ireland.

Scott: So we get taxed in Northern Ireland. It goes into the treasury. It goes into the dirty big bowl and it doesn't come back because there's no Stormont.

Seamus: Exactly. I can certainly understand people's frustrations with that. Here, we're funded by the Department of Economy for it. Apprenticeship NI is the primary development program that we have. It's used for upscaling staff and for supporting career progression, things like that.

The problem is there was a secondary question in terms of the targets in public sector and everything else. Essentially, we don't have them here in Northern Ireland. We're paying into it and we're not getting a huge amount out of it is the difficulty we have at the minute, but hopefully things will move forward and that will be rectified shortly.

Wages and Holiday Pay

Q "Operators work a permanent 24/5 shift on rotation and receive contractual static shift allowance premium on top of their basic salary. Can this shift allowance be taken into consideration when comparing pay rates against the national living wage?"

Keywords: Salary; Shift Allowance; Pay Rates; NMW

Scott: Okay. We'll go back to this question and then we'll go back to another Northern Ireland GB thing. Questions on wages, "Operators work a permanent 24/5 shift on rotation and receive contractual static shift allowance premium on top of their basic salary. Can this shift allowance be taken into consideration when comparing pay rates against the national living wage?"

Seamus: So the basic position is that they're saying the question then as I understand it is underlined. The basic position has to be that you can't pay less than . . .

Scott: The national living wage, but in these guys, they get a basic wage and then they get a shift allowance on top. They go home with more than the national living wage, I'm assuming, national minimum wage. But because they only get it because of the shift allowance, is that okay?

Seamus: I don't have . . . the issue is that is their salary, that's what they're taking home. It appears to me that it's contractually binding on the employer because the fact that they have agreed to pay this above and beyond. It forms part of their normal salary.

Scott: Going back to the holiday pay questions, that particular contractual allowance should be paid on the holidays as well, at least for the working time.

Seamus: Again, just looking at it from the position of what is the usual normal position for the employee, if that's what they're getting on top of their salary, it's inclusive.


Q. "We are a Northern Ireland-based company with employees in the Republic of Ireland and England. Do we follow Northern Ireland law as we are based here, or do we need to follow the laws applicable to where the employees live in the republic and over in England?"

Keywords: Jurisdiction; Practice and Procedure

Scott: Okay. We've got another Northern Ireland-GB question here. "We are a Northern Ireland-based company with employees in the Republic of Ireland and England. Do we follow Northern Ireland law as we are based here, or do we need to follow the laws applicable to where the employees live in the republic and over in England?"

Seamus: Essentially, it's about where the employees are. We've covered this slightly before in another podcast, but essentially, it's about where they're conducting the work and what their contract provides for. There's lots of employees in Northern Ireland that work for English companies, but they don't work under English law, they work under Northern Irish law because they're based and they work here. That's the applicable jurisdiction.

Sometimes, you'll get employees that will be particularly in around sales rules. They will be employed by an English company. Their terms and conditions will be English. They will travel. They'll do sales in England. They'll do sales in Northern Ireland and in the south as well. But if the contract of primarily their work is English-based, their terms and conditions should be English-based. The trickiest one that I had was someone that worked on an oil rig in between Northern Ireland and Scotland and we were trying to figure out where exactly their jurisdiction was.

So we had to take a route and try and measure where they were. We were able to get it eventually and determined they were actually Scottish-based rather than Northern Irish-based. Jurisdictional points, sometimes I will see contracts that should be Northern Irish-based and should contain Northern Irish legislation. In fact, when you look at the contract, they're English and they're wrong. Really, that question comes down to whatever the employee said, the employee has to bring tribunal proceedings and you're wondering what's the correct jurisdiction? Do we bring it in our tribunal here in Northern Ireland?

Scott: Or Dublin.

Seamus: Or where it is. I did have a case a number of years ago where the case was brought in the wrong jurisdiction and our tribunal here held that it was out of time and they weren't able to bring the case going forward because it was out of time. So, it's an important point, but the bottom line is where you work and where the engagement of your employment takes place is where your employment jurisdiction is.

Scott: There are some on the margins or some who are sent abroad for a limited period of time or whatever, they may confuse it, but generally speaking, it's wherever you're normally working.

Seamus: The employment contract can afford mobility clauses and things like that for an employee to move to a different jurisdiction for a period of time, but the contract should be very clear about that.

Scott: Okay. We've only got a couple of minutes left to go. I'm going to ask one more question and then we're going to close off for the rest of today. Like I say, you'll be able to get the podcast in an hour or so and go through these questions. Anyone who's listening, they'll be able to get some more later. We'll get a transcript up on the website as soon as we can.


Q. In a disciplinary investigation, should the investigator demonstrate that they have reasonably taken . . . what they have reasonably taken into account and have they taken into account every point of defence made by the employee even if they are considered immaterial to the matter at hand?

Keywords: Disciplinary Investigation; Relevance of Information

Scott: Seamus, in a disciplinary investigation, should the investigator demonstrate that they have reasonably taken . . . what they have reasonably taken into account and have they taken into account every point of defence made by the employee even if they are considered immaterial to the matter at hand? For example, the employee references historic events, which have no bearing on the case or they try to cover up things, obfuscate or try to muddy the waters so you have to take it into account.

Seamus: It's really important. The idea behind the investigation process is to make a determination as to whether disciplinary action is warranted. So, there will be allegations that are being dealt with, that are being looked at. It's really important that the investigation focuses on the allegations that have been made. Certainly, the employee might try to explain or mitigate circumstances during the investigations. You take what is relevant specifically to the allegations. What's not relevant, you discard. You don't need to get involved.

Now, sometimes, that can become difficult to do because the employee might say that only happened because of this happening. Certainly, you would have to take that into account and draw your reasoning from what's relevant and not relevant, but certainly investigation processes, you manage them, you bring the person back. The key question to ask anybody during an investigation whenever they go off on a tangent is how is this relevant to the allegations. If they can't answer that question, it's not relevant. Discard it.

Scott: Okay. Thank you very much, Seamus. Thank you very much, everyone, for listening. Our next webinar will be on the 10th of January. That's Martin McAllister from the LRA. We'll be going through the review of the year and looking at the top ten employment law cases of the year as well. Check out your emails for that one. We also have the Employers for Childcare one on the 22nd of January.

The next one with O'Reilly Stewart and Seamus McGranaghan will be on the 2nd of February. If you put those first Friday of every month into your diary, that one will be at 11:00. Martin McAllister's next Wednesday is at 12:00. Thanks very much. See you soon. Bye.

View all of our forthcoming webinars.

This article is correct at 05/01/2018
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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