Pay; Volunteers; Sick Leave; GDPR; Recruitment; Travel Time; Probation

Posted in : 'Any Questions' Webinar Recordings on 6 July 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

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

  • Pay
  • Volunteers
  • Sick Leave
  • GDPR
  • Recruitment
  • Travel Time
  • Probation
  • And much more

Transcript

Scott: Good morning. This is Scott Alexander from Legal-Island. I'm here with Seamus McGranaghan from O'Reilly Stewart Solicitors. We're live in Belfast. Welcome, everybody, another sunny day. When will it ever end, do you think? When will it ever end?

We've a number of questions. We're going to try and get through them today. The format is very similar. You've sent in quite a few. We'll get through as many as we can. If you want to send in any further anonymous questions, use the little chat box — it will appear on my screen — and we'll try and put as many of those as well to Seamus as we work through.

We'll be here until 11:45. Afterwards, you can listen back to the stream if you have to leave a little bit early or you want to refer it on to anybody else. Within a week or two, we'll break down those questions and you can have a look at the transcriptions online as well. So if you're searching for various questions, you can, of course, do that.

We have broken down all the other questions since we started this series back in October, I think it was, last year.

Seamus: Yes, October, yeah.

Scott: So there are well over 100. If you want to search by topic as well, just go into that section of the website, in the Resource section, and you'll find all those questions broken down for you as well.

Q: We have employees who are contractually entitled to a bonus based on the achievement of KPIs. If an employee has not had any KPIs set by his manager, what is he entitled to in terms of a bonus payment, if anything?

So without further ado, Seamus, let's get onto the first one. We're going to look at pay. We've got a number of issues coming through. Pay, volunteers, we're looking at sick leave, we're looking at discipline, investigations, lots of things today.

For the first one here, "We have employees who are contractually entitled to a bonus based on the achievement of KPIs." That's key performance indicators. "If an employee has not had any KPIs set by his manager, what is he entitled to in terms of a bonus payment, if anything?"

Seamus: This is a situation that I would come across from and time to time. As was the case, only here is that we're reading in the question that there is a, like a contractual entitlement to this bonus. And it's based, obviously, on the key performance indicators. There's something that has gone awry here in the sense that the employee hasn't been provided with the KPIs, and the likelihood is then that the employee is going to have an expectation for a bonus. But how then do we work through that process in terms of assessment of what the bonus will be?

The key thing is go back to the contract and look at the contract, look at what the terms of the contract are. If the contract does provide for the employee to have a KPI, and that's why the bonus is set out, it's formulated, then there will be a problem here for the employer, and certainly the employee would be coming and saying, "Maybe my colleagues have got bonuses. They were set a KPI and I wasn't. I'm at a disadvantage and at a detriment here compared to my colleagues.

So there would be that aspect of if the colleagues have been provided with KPIs and that employee hadn't.

Scott: You could almost say that the issue could be the manager hasn't done their job, if it, indeed, it's the manager who hasn't set the targets in this particular instance, and therefore there's nothing for the employee to hit.

Seamus: Yes. There's a feeling there in terms of that, and that would need to be addressed, as to why that has happened. It might be one that had slipped through the net or it could be more of a larger issue in terms of the manager issue with the employee.

But it's important, even if there was, perhaps, underperformance with the employee, that there has to be some sort of indicator there of how the employee is performing in order to assess that and to be fair to the employee and able to say to the employee, "Here's the improvement that we require."

But my view would be that just in the circumstances of this one, that it's likely that if there was no bonus pay because the company was saying, "Well, there was no KPI there, sorry, we can't pay a bonus," that the employee's going to have a problem with that. You're probably going to end up in a grievance procedure. Or worse than that, it could end up at some sort of equal pay claim or something along those lines.

So in the circumstances where maybe that's, say we take a situation where this has genuinely been forgotten about and there's just been, it's just been missed, it would be important, I think, to carry out a review of the employee's performance and maybe apply a comparative process as to what has been applied to colleagues.

And it may be, perhaps in various settings, everybody is on the same target and everybody knows what the KPI is. It could be on a department basis and other types of employment, whereby there are different indicators. So it's about looking at something that would be fair and reasonable but yet comparative in terms of other employees. I think that would be the way that the employer would need to handle that one.

Q: If a worker is self-employed for both tax and NI purposes, surely he isn't entitled to SSP?

Scott: Okay. We'll move on to another pay issue here. Someone's written in, saying, "I'm rather confused about your coverage of the Pimlico Plumbers case, as it implies that all workers are eligible for both holiday and sick pay. I get the holiday bit. It's the sick pay I'm concerned about. If a worker is self-employed for both tax and NI purposes, surely he isn't entitled to SSP." That's the Smith against Pimlico Plumbers case . . .

Seamus: Yes, before the Supreme Court

Scott: . . . and the Supreme Court decision.

Seamus: Yep. So interesting decision, worthwhile reading, and if you don't want to read the whole decision, there's certainly plenty of commentary. Obviously, there's Legal-Island commentary out there as well, which you can read and get a clear understanding of it.

But this case is really about the aspect of the employee was miscategorised. So I shouldn't say employee, but the worker was miscategorised in that, very much treated as a self-employed worker in the sense that he paid his own tax, paid his own National Insurance. And certainly there as a finding by the Supreme Court that he did pay his own tax and National Insurance.

But their view on it was that the initial tribunal had been correct and that this was, in fact, a worker rather than a self-employed.

Scott: And that's because he had very limited opportunity to bring in anybody else. He wore the Pimlico Plumbers' uniform.

Seamus: He had a van.

Scott: He drove their van, he did all those kinds of things. So there are a lot of control tests. You apply all those usual stuff. He was deemed to be, by the Supreme Court, a worker. And as a worker, he would be entitled to holiday pay and he would be entitled to various other things.

Now, the issue here is he had not been a worker. He had been happy enough claiming self-employed status, and therefore he didn't qualify for SSP. And then he ended up taking an employment claim at the tribunal . . .

Seamus: Yes, because he fell into a period of . . .

Scott: Of sickness.

Seamus: . . . sickness. And that's where his issue was, in terms of claiming that he was, in fact, a worker. It’s interesting in the decision that they do set out the various tests that they apply, and they do clearly say there are, there are pros and cons, if you want to put that way, and ups and downs.

But ultimately, their decision was that he was a worker. He's a worker, and therefore he gets an entitlement. And strictly speaking, if you are not self-employed and you're a worker, there is an entitlement to holiday and also to statutory sick pay rather than company sick pay or anything like that. But the SSP, obviously there's various aspects that you need to look at in terms of even a normal employee and their entitlement to SSP. But it was one of those circumstances where this employee hadn't paid tax, hadn't paid National Insurance.

Ultimately, probably this is a query that goes back to HMRC if you deal with it, with statutory sick pay. They would make the decision in terms of what would be payable. Whether or not there would be any sick pay that would be entitled to be back-paid is one matter of it. If the NICS hasn't been paid, it may be that only going forward you would have an entitlement to SSP.

Similarly for the holidays as well. Roughly speaking, if we're moving back through to an entitlement for holidays, we say 18 months before you lose them again, and after a certain period of time, and the period drops. But then we had some discussion then about the King and Sash decision, and probably from in and around November 2017, where it provided for a longer period for a holiday entitlement.

Scott: That's because, like Mr. Smith in the Pimlico Plumbers case, in King and Sash Windows, Mr. King was wrongly categorised as self-employed, and therefore had been denied his statutory rights that would have applied to a worker. And therefore there's no backstop on a holiday pay qualification there. So presumably — and it's not really part of this question here — but presumably, in the Pimlico Plumbers case, anyone that's wrongly categorised, and all the other gig economy stuff that I keep . . .

Seamus: Absolutely.

Scott: . . . coming across, they could go back a number of years, saying, "I've been denied my four weeks' holiday under the Working Time Directive, and therefore I want four weeks' holiday pay, going back to whenever I started."

Seamus: Yep. And there could be huge amounts of monies that companies, in the gig economy, would have to pay. And specifically, the commentary talks about the likes of Uber delivery and those sorts of companies that, with they're categorised the minute as being self-employed. And whenever you would apply the tests that the Supreme Court did, you may very well find that they are in fact workers.

Q: Is it the four weeks' holiday pay entitlement for workers or the 5.6 weeks' holiday pay?

Scott: Okay. We'll move on to another issue. There are a couple of questions coming in. "Are workers entitled to statutory paternity pay?" That's come in, and there's one, and "Is it the four weeks' holiday pay entitlement for workers or the 5.6 weeks' holiday pay?" It's four weeks under the European legislation.

Seamus: Yes, that's right.

Q: Do the following count as working time, and therefore should they be paid time? Attendance at training, which the company offers but staff volunteer to attend.

Scott: We'll move on to a different question. Volunteers — I put these two things together because it's still current to working time.

"Do the following count as working time, and therefore should they be paid time? Attendance at training, which the company offers but staff volunteer to attend." So it's not necessarily unpaid volunteers getting training, but workers who volunteered their time.

"These staff are paid early and work mainly part-timers. If they wish to attend a training, their shifts are organised around this. So do employers have to pay for employees to attend training courses?"

Seamus: If the employee is volunteering to attend the training and there's certainly, there wouldn't be any compulsory aspect from the employer, then no, there's no entitlement to payment in relation to that. So the guidelines, if the training is optional and the employee wants to avail of it, and then they're not entitled to any payment. And so that's where the volunteer aspect of it, because the natural fact, these are employees that are paid on an hourly basis or workers that are paid on an hourly basis.

If the employer is saying there's a compulsory aspect to all of this , and this can happen whenever the person commences a new role, that there will be compulsory training, and certainly that's payable because the company are saying you must attend the training, then it's payable. But where it's optional and it's not compulsory, then there's no obligation to you to pay.

Scott: Yeah, I suppose there's a balance there, because if you're sending your workers on training courses, there must be a purpose behind it.

Seamus: You would imagine. Sometimes there are other scenarios there, where the employee can approach the employer and say, "There's training available there. I think this training would really assist me in doing my job. I'd really like to go and do that training." And the employer may permit the employee to take some time off, may rearrange the working pattern or the work shifts in order to do that.

Ultimately, there would be a benefit for the employer, where you have an employee that is eager and keen, is going to get further training, is ultimately going to do their job better. So there's food for thought there in relation to how the employer seeks to deal about it.

Scott: Most employers would pay, they would do it during working time unless there are shift issues here, obviously. But if it's during working time, most employers would just say you take the time off and we pay for it.

Seamus: Yeah. That's exactly it, and there's an incentive and a reward there for an employee that is keen to pick up and maybe to improve their performance and things like that. But certainly where they're voluntarily asking for it, there's no strict obligation to pay for it. But it's my kind of view that a lot of employers will do, or my experience, a lot of employers will seek to cover that.

Scott: Okay, thank you very much. You're listening to Seamus McGranaghan and Scott Alexander. We are going through a series of questions at a fair lick this morning, I have to say, Seamus. You must be keen to get in the sunshine. So . . .

Scott: We're going to deal with a question that, dealt with this issue before, but this is a slightly different aspect.

Q: We have staff wishing to use annual leave rather than be put on sick leave, more often to avoid trigger points in the absence policy. Some managers have approved this. Others have not. Is there a risk that the lack of consistency applied by management could be deemed discriminatory?

"We have staff wishing to use annual leave rather than be put on sick leave, more often to avoid trigger points in the absence policy. Some managers have approved this. Others have not. Is there a risk that the lack of consistency applied by management could be deemed discriminatory?"

So we've dealt with it before, about whether it's sensible to let people take annual leave rather than sickness and the problems it can cause when it comes to assessments and redundancies and all kinds of things. But what about this angle on discrimination? Is it really an issue?

Seamus: Well, I think that consistency is important, and that you do need to be careful that if there are certain employees that are continually supported by management in terms of a way of managing their sickness absence yet is denied for another group of employees, you need to be careful there, particularly of discriminator issues.

So for instance, if it was a male manager who was supportive and permitted his colleagues and his team that were all male to continually use this process, yet denied it for females, then you potentially have a discrimination claim there arising. So consistency is an important process to this, and what's good for the goose is good for the gander as an old saying. And it's one that should be applied.

And outside of that, I think that where there is some discretion in terms of it, and you're not making differences across the board with other people, I don't have a difficulty with it in that sense. But for me, it just sits much easier and much better that we deal with it on a consistent basis and there's a clear policy and procedure in place, and that's what we stick to.

Scott: It probably just does come down to some managers are softer, if you like, or more engaged than others. But the bottom line is you end up with the jealousies between the departments and it causes issues further up the line if some say, "Oh, they get away with it and we don't," or "They get a benefit and we don't." But it's more that issue rather than discrimination, really.

Seamus: It would be very common to find that, certainly, where if you're a manager of a team that performs very well, and you maybe take a view that as long as the work gets done and you're not taking those days where you're really needed to where we have an important project to finish within a certain time frame, when a team works very well like that, it can be a positive and it can be a good thing to have a process where that happens.

But again, you always think of the fall-back position that somebody will start to abuse it. And where there's a precedent set-up of that yes, we can just take these holidays or if we can take a couple of days sick here and we can treat it as holidays, it won't be a problem. You're loosening the grip there and that leaves it open to abuse. I suppose that's the concern there in relation to it.

Scott: We've another question in here has come online, so it's in the little chat box. It's totally different, nothing to do with anything else here, I suppose.

Q: Is it satisfactory to do a review of employment records each year under GDPR and dispose of any that have exceeded the statutory or recommended retention periods during that year, or is it necessary to do this more often?

"Is it satisfactory to do a review of employment records each year under GDPR and dispose of any that have exceeded the statutory or recommended retention periods during that year, or is it necessary to do this more often?"

Seamus: I think a review annually is reasonable if the bottom line should be under GDPR, you shouldn't be retaining any information for longer than what you require, what you need it. Certainly, if you have the time and you can facilitate that review happening, then good, because you'll be going through your audit process under GDPR and you'll be actively taking the steps to comply.

But I would have thought a yearly review is sensible. Certainly you would find that there might be an annual review of performance or reviews taking place. That might be a good opportunity that perhaps if it all falls within a certain month within the company, that that's a time also to look at the records and see what's worth retaining, what needs to be retained, and what we don't need to retain, that we're disposing of, and of course, disposing of it in a safe manner.

Scott: Yeah. I suppose the difference there would be if you've got a system that reminds you of certain times. So if you have, say, disciplinary issues, then they don't all take place on the one day, and therefore those warnings would run at different times. If you leave an expired warning on a file, then there's always a chance that the employee, if there's another disciplinary issue, is going to say, "You had recourse and you took account of that expired warning," because you didn't have a system to clean it out on time. That can be a bit of a danger, but in general, who has the time to go through all those things?

Seamus: Yeah, no, I never really actually thought about it in that sense of reviewing it from the aspect of when the warning has expired, and I suppose that that is an important point that really consideration should be given in terms of if the warning has expired, that the documentation should be removed from the file because it would leave the employer open there to say, well, while it's on the file, it's still a reminder. And if there's a change in personnel, change in management, it might colour the . . .

Scott: The judgement.

Seamus: . . . the view. So I've never actually thought about it in that way, but certainly, like if you have an automated system, whether it's through a software case management system that will flag these things up for you or even if it's just a matter of putting it in a diary to say that this warning has expired, I think it's a good step to take. The GDPR will certainly keep us all on our toes, absolutely.

Q: One of our essential criteria is a GCSE in English and Maths or equivalent. We have rejected a candidate that has not met this criterion, but they have asked do we not make reasonable adjustments or could they not make reasonable adjustments, as they were unable to do their GCSEs as a result of a disability. If it is an essential criterion, do we need to make this adjustment when they have met the other criteria?

 

Scott: The next question, we're going to look at some recruitment issues here. I see there's one of two other questions come through the chat box. We'll try and get back to those in a moment. Anyway, this one is to do with "One of our essential criteria is a GCSE in English and maths or equivalent. We have rejected a candidate that has not met this criterion, but they have asked do we not make reasonable adjustments or could they not make reasonable adjustments, as they were unable to do their GCSEs as a result of a disability. If it is an essential criterion, do we need to make this adjustment when they have met the other criteria?"

Seamus: This is an interesting question, certainly, because it does throw back that idea of the reasonable adjustment versus what you would view as essential for being able to do a job. For me, I think the bottom line is that where there are key qualifications and experiences needed, that those are requirements for the post. You're not going to be able to do the post unless you have those.

This question, really, it's to an interesting aspect of its GCSE in maths and English or equivalent. And it maybe is that there are equivalent examinations or certificates that are the same and hold the same weight and quality as a GCSE. Dare I say, go back to the old O level, you know what happens there in that sense. But you know, the key thing here is looking at the equivalency of it. It may be that someone that has a disability that was unable to do GCSE, but they may have other qualifications that could be viewed as equivalent to that. And certainly there is a website, I can't remember the name of it, that you can go onto and it does provide you with a table of the equivalents in examinations or certificates that are the same as a GCSE. 

Scott: There's a European system which does something similar. But one of the key issues here is, is it absolutely essential? Because if you have a disabled employee you've got to be able to turn around and say, "Yeah, we do need that for the job." And the reasonable accommodation or adjustment, if it doesn't enable them to do the job, then there's no point in doing it.

Seamus: But exactly, yes.

Scott: But if they can do the job and you can make a reasonable adjustment, is it really essential in this particular circumstance? But you still have to consider it. If you don't consider it at all, then you're on a sticky wicket, I would say, with regard to . . .

Seamus: Absolutely.

Scott: . . . this claim.

Seamus: And there's lots of posts out there that it would be interesting, whenever you look at them and they say have a requirement in GCSE in English and maths, and you look at the actual posting and you think why is there a requirement for that, that the post doesn't touch on that? And again, it's down to that justification aspect and really, the employer being able to justify it. But I think it's clear that where there are specific qualifications and/or experiences and that there's an inability to meet that, even whenever you've looked at the reasonable adjustment aspect of it, it's a non-runner from that aspect, absolutely.

But it's about really looking at the alternatives and the equivalency aspect, and also then bearing in mind are there adjustments that I could make here in terms of this? If there isn't, you move on in that sense.

Scott: You usually find it's not going to work. There's always a balance with employers there anyway, because if you set the standards and the criteria too low, you end up with too many candidates.

Seamus: Well, that's it, and it can be a way of almost shifting and short-listing, is to set specific criteria and qualifications in order to limit that. But it's interesting to me that, I'm aware recently of an employer client of mine who was going through a recruitment process and was really struggling in terms of getting people.

This was an employer that was looking for a large number of employees and had done various things in terms of web, agencies, even taking to radio at one point because they were finding it difficult. And I never thought at the time, but really, they could have looked in and around of what they were demanding in terms of their criteria for the role and if they were suitable or not, you know.

Scott: Okay. There's a number of people — I was listening to the radio this morning, actually — a number of very successful entrepreneurs who have dyslexia and may or may not end up with a GCSE in English or whatever, simply, but it doesn't stop them moving on to become very successful and being able to do powerful jobs and employ lots and lots of people. Whether they set that criterion off, requirement of GCSE in English, I don't know. But you write off people too soon.

Seamus: Definitely. And for employers, they're missing a trick there, because there's talent within those individuals that simply are being ignored if they don't make that threshold. But and as we are now, there are so many different types of qualifications and there are paths that some individuals just don't go down in terms of educational certificates, whether it's GCSEs or otherwise, and they take a different road and a different path.

And as an employer might not always be familiar with those aspects of it, and you might write someone off there unfairly, where you're really missing a good talent. And of course, there are thousands of wealthy businessmen that have excelled in life and in business and that have no qualifications to their name whatsoever.

Q: We hold a high volume of interviews on a regular basis across a number of locations for a junior role. To date, the manager of the area has been interviewing alone, the reason being that it is too costly and time-consuming to have a second person involved. Given this is against the Equality Commission's guidance, is it justifiable or should it be avoided at all costs?

Scott: We're staying with recruitment here, Seamus. This question here, "We hold a high volume of interviews on a regular basis across a number of locations for a junior role. To date, the manager of the area has been interviewing alone, the reason being that it is too costly and time-consuming to have a second person involved. Given this is against the Equality Commission's guidance, is it justifiable or should it be avoided at all costs?"

Now, I suppose the first question here is, is it actually against the Equality Commission's guidance to always have more than one person interview?

Seamus: Well, I had a look at the guidance because I had advanced notice to this question, and the guidance certainly refers to an interview panel. But I didn't come across anywhere that it said that the panel had to have more than one person on it. I think my view is that ideally and in a perfect world, it's beneficial to have two people on a panel, two sets of eyes, two sets of ears. And there can be a difficulty sometimes where you have two people and they don't agree, and sometimes what we are looking for, a third person in terms of that.

But the reality here is that sometimes employers will just not have the resources, and you do have to consider the size and what's open to the employer when it comes to their recruitment processes. We can see from this question as well, this is a junior role. And there's a commercial reality here for employers as well, really. Are they going to take a day out of a manager's role where they're missing out on important work to send them on an interview panel? And there is that other aspect of it, if it's not broke, don't fix. Or if one person here, things have been going okay in terms of that recruitment.

I suppose my thoughts and around this were that ideally, have more than one, and where it's not possible or where it's just not commercially reasonable to do that, continue on your path of having one panel member. Or maybe have someone else there to take a note because we were talking we talking in advance that it's that aspect of if you are taking notes while you're carrying out an interview, you're losing engagement with the candidate and you are not picking up on certain aspects that you would if you were having a face-to-face, engaged conversation with them. And the reality is, if you're doing an interview, your note-taking is going to be poor. If there are problems that arise after that, you don't have a note to back up what has happened, you're going to be on the back foot.

So I think the sensible thing would be even to have maybe a junior member of staff that's already employed in the company to sit in and take the note, and at least that frees the one panel member to engage, to have a fit and proper discussion and interview with the candidate.

Scott: Yeah, and overall, if you deviate from the Equality Commission's guidance or the codes or the LRA code or whatever it happens to be, you should also record why you're doing that . . .

Seamus: Exactly.

Scott: . . . somewhere and justify it. Cost might be one of them, it might be time, it might be it's a time of year. The other thing, obviously, is if you can bring two people, you're more likely to get a balance and probably a better decision. But it does come down to the economic reality, and if they're not getting any claims, they don't really have to worry too much about it. But if you've been in situation where you have been getting claims or you've got a bullish manager, if you like, then it might be better to change your system.

Seamus: That speaks for itself. And I'm also aware, just in terms of in some of the public sector roles as well, that they would have a third independent person there, entirely that would sit in the room and will take a watch and brief of what's gone on and will make sure that the decisions that are arrived at of the panel are not entirely unreasonable or mad, if I put it that way.

And it's a third-party controller that essentially keeps an eye and makes sure that policies are followed, procedures are followed. And we all hear those aspects in interviews where there's a changing of marks after the interview's taken place, there's discussions that go on. Notes go missing. And it leads to the suspicious view sometimes from candidates of a collusion or something like that, and they were going to appoint this person and they were always going to appoint that person.

So look, there is good guidance from the Equality Commission online, and it is good guidance and it's worth a read for anybody that is going through a recruitment process. But I think you have to be practical as well about these things.

Scott: Okay, well, we'll move away strictly from recruitment. We'll still look at work-related matters, obviously, but we've got a question online.

Q: We have a number of staff who verbally agreed to work from home a number of days a week, but it was never formalised, and now the company want to stop them doing it. Can a company do this? Or as it's been happening for so long, do we need to consult?

"We have a number of staff who verbally agreed to work from home a number of days a week, but it was never formalised, and now the company want to stop them doing it. Can a company do this? Or as it's been happening for so long, do we need to consult?"

Seamus: My view on that would be that they have to consult. If it has been going on for a lengthy period of time, even if it's not written down and there's no correspondence confirming it, there's a custom and practice that has been established that probably at this stage would form part of their terms and conditions of employment. And if they wanted to make amendments to the terms and conditions of employment, you have to consult, you have to get agreement. If you make a unilateral decision in terms of that, potentially the employee could say this is a . . .

Scott: Constructive dismissal.

Seamus: . . . fundamental breach of my contract of employment. Really, there is a good — I think I've mentioned this before — but there's a really good piece on the LRA's website. They have guidance in terms of varying terms and conditions of employment and the best practice in order to do that.

Sometimes it can feel for an employer as an impossible task because sometimes you will have employees that are just simply not willing to change and move. If somebody has had the benefit of working from home, and I think it would be difficult to re-engage that employee back into working in an office environment. I think you're going to have to have some carrots in terms of trying to engage and get them in.

Scott: Certainly would. I’m in for a few days a week when I can, and yeah, I get them into the office five days a week. What's the point? I'll lose an hour-and-a-half's travel time.

Seamus: Listen, there are fantastic benefits available there for employees that can work at home, and equally, there are fantastic benefits for employers as well. And the research shows that there is a benefit to it. And so to bring them back in at work I think again comes back to the employer having to justify that. And the consultation period really is going to be about presenting to the employee why it's necessary and seeking their agreement in terms of it. Without that agreement you’re on a sticky wicket.

Scott: Just as an aside, that guidance on varying contracts, my picture used to be on the front of the little booklet, along with one or two other colleagues who are no longer at the LRA. But that was many years ago when that guidance was originally written.

Anyway, here, let's move on. Let's travel in time and deal with travel time itself. We've got a couple of combined questions here about the circumstances in which travel time is included in a working time calculation. When does it count?

Q: In light of the Tyco decision, are mobile workers entitled to be paid for time spent travelling between home and the places where they work?

In light of the Tyco decision — it's a Spanish case — in light of the Tyco decision, are mobile workers entitled to be paid for time spent travelling between home and the places where they work?

Seamus: Well, I think if we take this back, because what we're talking about here is the Working Time Regulations 1998, and if we look at sort of how that's defined within the regulations itself. So working time itself is defined as any period during which the worker is working at his or her employer's disposal and carrying out his or her activities or duties in terms of that, or any period where he or she is receiving relevant training, and any additional period designated as working under a relevant agreement, so if there's a separate agreement to say you also work during this period of time.

Working time includes travelling where it is an integral part of the role and in Tyco that was the aspects when you're talking about those sorts of sales executives or mobile repair person, where they're travelling from place to place to place and they might not have a base in terms of they may just leave their house in the morning, they may get an email on a Sunday night or a Friday afternoon to say these are your list of calls for the week. And they never go near the office.

Scott: The office, which is what happened in Tyco. They closed the regional office. They ended up working from home and they were travelling all the time. So since they were going to their work, they had no base, effectively, their workplace was their home, or at least that's where they left from every day. They never went into the office and then left from the office. So they didn't go from home to office, as most of us do.

So we wouldn't get paid and it wouldn't be working time if we're travelling, but this question is about mobile peripatetic workers, no fixed place of work. And those ones would qualify under the working time, they're not regulations, but they're really a directive. Regulations haven't really been changed.

Seamus: No. And that's the basic position. So for those types of scenarios, the time essentially spent by the worker travelling each day between their home and the premises. And if you look at the sort of first and last call basis of how that works out, that time is designated as being working time and they're entitled to payment in at that point.

So it's really about looking, I mean, it's a broad question in terms of, I have to say, all mobile workers. I think you need to look at the particular circumstances. Is it that the employee is one day a week coming in to the office, maybe to pick parts up or pick up more stock or whatever it is, and then what way is that working. So it's not just as simple as saying you're five days a week, you're getting payments. I think you have to look at the individual circumstances of it.

Scott: In this case, certainly travel time could count as working time. And of course, once you've got that, you then fall into the other working time issues of shifts and breaks and everything else that comes into it just because of that time. And it might have been that in Tyco their first journey was an hour away and their last one was three hours away. Well, that's four hours extra working time added onto their working day. So it could be quite costly unless you plan the route to make sure that they finish near their house.

Seamus: Yes, significantly, and that's the job for the employer to be smart about that and make sure that the process is working as efficiently as possible.

Scott: Okay, we have a few minutes left here. You're listening to Seamus McGranaghan from O'Reilly Stewart and Scott Alexander from Legal-Island. A number of questions that have come online, a number of questions that were sent in in advance. If you get a chance to answer the post-broadcast survey, then that's where we get most of the questions. So if you can just fill that in and just leave a few questions, that gives it a little bit of extra time to plan the answers and do a bit more research if necessary.

So here's a question that came in, not through the survey, but a little bit later on. But we have seen it in advance, and it's on dismissal.

Q: An employee was asked to attend an investigation meeting, but tendered his resignation before this could start. He was quite militant. During a follow-up meeting, he refused to sign the minutes of the meeting. We accepted it and gave him garden leave for his two weeks' required notice, as per the contract. What are the dangers of this, if any?

"An employee was asked to attend an investigation meeting, but tendered his resignation before this could start. He was quite militant. During a follow-up meeting, he refused to sign the minutes of the meeting. We accepted it and gave him garden leave for his two weeks' required notice, as per the contract. What are the dangers of this, if any?"

Seamus: "If any" is the question, but I don't have a problem with how this process has worked out, subject to, of course, that the company is following its policies and procedures and making sure that it has a contractual right within the contract of employment or the staff handbook to place the employee on garden leave in the first place.

This is a scenario that does happen, and you will get someone that is invited in for an investigation and essentially they will quit the job there and then. And there may be an opportunity for follow-up after that, and you can imagine the circumstances of that being very difficult for the employee and for the employer.

But it talks right here about the refusal to sign minutes. And that's fine. You can't force anyone to sign the minutes. If they don't want to sign them, they don't sign them. But the company would be retaining the minutes as an accurate representation of what has happened.

Scott: I'm probably going back to previous discussion, where you're probably as well writing on the minutes "the employee refused to sign these minutes" as a true record. But we consider them a true record.

Seamus: And it is what it is at the end of the day. You can't take the blood from the stone in that sense. It is what it is. If the employee comes back with comments in terms of the minutes or something, then that can be looked at. And it might even have a point where we've had two sets of minutes, where we've gone into a tribunal case with the employee's minutes and the employer's minutes, you know.

But essentially, I don't have a difficulty. I suppose the employee is frustrated or unhappy in these circumstances. They have resigned and you could be looking at a claim here for constructive dismissal when they have resigned. Maybe they're alleging under these circumstances that the investigation was entirely unwarranted.

So I think it would be a good step for the company to going back to the employee and saying, "Well, here's your copy of the grievance procedure. If you do have an issue, lodge a grievance if you want. That's what it's there for." And at least in that sense, the employer maybe gets some understanding of what the employee's situation is, what their point of view is, and can maybe look to seek to avoid the litigation if it's coming down the tracks at that point. At least it gives the employer a heads-up.

But other than that, I don't have a difficulty. I think that where there's a right to place the employee on garden leave or you have an employee that is militant and an employee that's going to be obstructive or destructive in their notice period, it's sensible and it's prudent for the employer to place them on garden leave.

Scott: It may well be in most cases they'll leave immediately anyway and therefore there's no need to worry about the garden leave they’ve left. And it's the same process. They'll sign anything to just deal with it.

We've got a little clarification question here. "Did the Tyco case not just relate to working time in relation to rest breaks as opposed to pay?"

My recollection is that the European court did indeed say the payment was a matter for the domestic authorities.

Seamus: Authorities, yes.

Scott: So within the U.K., that would be a matter of does it accrue National Minimum Wage? Well, that's up to the U.K. government to say it . . .

Seamus: They make the decision in terms of that.

Scott: . . . and so on. But the bottom line is, it did qualify as working time, and therefore the rest breaks would have had to be in that. And I can't see where something's deemed to be working time, that it wouldn't attract the normal payments. Because that's the same argument we have with all the sleepovers and everything. If they count as working time, why wouldn't they attract the National Minimum Wage?

Seamus: Yes. It would be hard to, I think, argue your way out of that one.

Scott: Okay. Our final question, I think, is quite a long one. So I think what we'll do is we'll avoid that and we'll deal with the probation question. We got an extra question in during the week here, and "probation," believe it or not, is the most popular searched item on the Legal-Island website. And go figure. We’ll have to do it correctly, I suppose, me included.

Q: Could you tackle the minimum the company needs to observe in terms of our obligations when dismissing somebody who is still in their probation?

"Please," it says, "could you tackle the minimum the company needs to observe in terms of our obligations when dismissing somebody who is still in their probation? There is this idea that because it's probation and less than a year of service, or they have less than a year of service, there is no obligation to provide reasons or to allow an employee a chance to address the company's concerns. What are the risks to a company who manages a probationary dismissal in this way?"

Seamus: Well, it's a valid question and it's something that I come across quite a lot in my practice. I either have a situation where the employer has just made a decision and they've done it on the basis of saying "I've been told or I understand that if they don't have 52 weeks of service, they don't have employment rights and they can't bring a claim. So I just decided to dismiss."

That happens quite a lot. I will get questions like that on a daily, or not on a daily basis, but on a weekly basis from clients, saying "Can we not just get rid of this person? They're here less than the 52 weeks." Worthwhile pointing out at this minute just be careful. I'm sure that for the vast majority of our listeners, they're all experienced. But just to be clear about it, in England, the position is different in terms of the qualifying period. In England it's two years. In Northern Ireland it remains at one year, 52 weeks.

A lot of the advice that you go on to any of the websites or any of the commentary, a lot of them are English-based and will tell you it's two years. And I've had a number of clients that have fallen into that trap as well. So to be clear about it, in Northern Ireland, it's 52 weeks.

Scott: And we also have the 1-2-3 procedures here, which need another jurisdiction, but doesn't necessarily have to be an unfair dismissal claim attached to it.

Seamus: Yes, exactly. So my view in terms of this is that how I would advise a client is simply that when they're coming up, either during their probationary period or where they're coming up towards the review meeting, that they send a type-on letter to the employee. So they put a letter to the employee to say "I'd like to invite you to the probationary meeting." And if they have concerns about their performance during the probationary period, and essentially, the probationary period is to assist the company to decide if the employee has a long-term future with the company. That's it.

So it's a type-on letter inviting them to the meeting, setting out what's the meeting's going to be about, setting out any concerns that the employer has in respect of performance, and telling the employee that there's a risk of termination of employment.

The second part is you hold the meeting with the employee, and yes, you do give the employee an opportunity to come back to you and say, "Well, here's my version of where I'm at and how I think I performed." And there's consideration given to that. And if there's an outcome, whatever that is — it can be an extension, it can be it passed, or it could be that you're at the point of dismissal — then there's a standard letter issued, dismissal letter, setting out the reasons for the dismissal, why the dismissal is essentially taking place, and that there's a right of appeal there in relation to that.

What my clients will come back and say to me is "Why do we need to do all of that? This is a lot of nonsense. They can't bring a claim for unfair dismissal." And what I've noticed over the past three, four years is that employees are smarter. They have the ability to go online, as everybody else, and they're aware that well, I can't get an unfair dismissal claim in, but I think that I've been discriminated against. I think that I raised a health and safety problem and now I've been sacked for it, or I blew the whistle, something along those lines. They can bring those claims without needing to have the 52 weeks qualification period.

Scott: And also, some of those claims, discrimination, whistle blowing, there's no limit to the award that somebody can get. And you've no justification for saying, "Oh, I followed the fair procedure," if you just cut corners and don't follow the 1-2-3 procedures.

Seamus: Absolutely. And you can end up in a tribunal case that you're scratching your head about, thinking, "This employee was with me for six weeks." And there's some of the cases there where there's been a very short period, a very short period where the employee has been employed, and they're sitting, saying, "How did this happen?"

The reality is, if a claim gets in under those heads, the tribunal can look at the qualifying period and can also award the increase for the failure to follow the 1-2-3 process. So it's important to treat it, I think, as any other normal dismissal in terms of that. And that's certainly the advice that I'm giving to my clients.

Scott: Okay. Thank you very much to Seamus. We did have that long question, you know who you are, you sent it in to me?

Seamus: Yes.

Scott: It's about the employee maybe had a fight at work, if you like, with a non-employee. If you want to get in touch with Seamus, please do, or get in touch with me. I'll put you in touch with Seamus as well.

We'll be back first week in August. Hopefully, some of you won't be on holiday at that particular time. But as ever, you can follow the live feed or the recorded live feed, if you like, online. You'll get that in an hour or so in the Legal-Island website. We'll break it up. You'll be able to get the questions. If you follow the survey and fill that in, you can send in your questions. Hopefully, we'll get to them the next time.

And just a wee reminder, our Annual Review of Employment Law, that 50% of the tickets have gone already. So if you do want to attend in November, I'd advise you to get onto the website pretty soon or get onto Vanessa in the office and book your place.

We will see you again on the first Friday in August. Thank you very much to Seamus.

Seamus: Thank you.

Scott: And I'll see you soon. Thanks very much for listening. Bye-bye.

This article is correct at 06/07/2018
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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