GDPR; Disability; Bonus and Discrimination; Volunteers; Sick Leave & much more

Posted in : 'Any Questions' Webinar Recordings on 1 June 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, discusses questions on the following issues with Seamus McGranaghan, Director at O'Reilly Stewart Solicitors:

Transcript

Scott: Good morning, everybody. This is Scott Alexander. I'm from Legal-Island. Welcome to our Employment Law at 11 webinar. I'm here with Seamus McGranaghan from O'Reilly Stewart. You may look on the Legal-Island website and you'll see questions from previous webinars. We've broken them up in the Ask Seamus section, I think it's called now, but if you go into the resources section, you'll find those there. For any future webinars, go to the events page on Legal-Island and you can register each month.

We have a number of questions up today. We're going to start with GDPR, but we're also looking at volunteers, sick leave, disability, recruitment, bonus, and other things. So, Seamus, let's start with the first question we've got here that was submitted.

GDPR & Retention Periods for Special Category Data

Q1. Would there be a retention period difference between occupational health reports and anything else in the personnel file proposed to hold for six years after the employee leaves that would form an argument from keeping health records separate from the rest of the personnel files?

So, this is about retention periods, but specifically, it's health. It's special category data. Is there a justification for separating it out and perhaps keeping it longer?

Seamus: Justification is the keyword there, Scott. Obviously, GDPR has been with us now for just over a week, since 25th May [2018]. Everybody, I'm sure, it seems to me, has been getting an abundance of emails about GDPR and providing consent for this and for that. It's very much on all of our minds here.

This specific question was in relation to retention under GDPR, retention specifically on the personnel file. The query here is around how long we retain those records for. Certainly, the idea of retaining those for six years seems to be what the standard is in terms of retention of a personnel file after someone leaves. I'm assuming from this question that it is about someone that isn't leaving their employment.

Sometimes whenever I've been looking at it, it's six years plus the last year of their employment, a total of seven years. But six years seems to be the standard there. What we're looking at here is the aspect of the occupational health reports. I think my own view in terms of that is the occupational health records are synonymous with the personnel file, I think essentially where there haven't been any issues that have arisen with the employee in terms of their health.

That is perfectly fine to discard and delete those records after the period of six years. There are circumstances where I can foresee that you may need to maintain the occupational health records for longer. I'm talking here about there being a justification for it in that possibly that there has been specific issues have arisen with this employee that may lead to some sort of litigation down the line or some sort of inquiries that are going to be made further down the line post the six years.

Scott: Or it may be that you're in a particularly dangerous occupation where health issues arise and you're saying, "We're going to hang on to all of those so we can show not just occupational health," but what they've been doing, their job descriptions to say you've never worked in that area of the factory. So, it's unlikely you're going to pick up this dust illness. But it's all about justification on each case.

Seamus: Absolutely. I think it is a case by case scenario where you're grouping employees together within that department. The interesting aspect, I suppose, would be the likes of those hidden illnesses that we hear about that can be industrial deafness or asbestos or maybe there has been a chain of claims arising. It would be difficult, really, to know about that within the first few months of the employee leaving.

The other thing that I thought about was maybe the aspect of psychological claims that would be made later down the line, and specifically if you've had a very difficult or severe bullying harassment case, where the employee has had psychological issues arising from that, maybe nervous breakdowns and times like they may be into psychiatric care and things like that. There's always the risk that the normal statutory time limits will not apply in circumstances like that. Maybe the person is ill and unfit to bring the claim forward.

The usual period is three years for physical injuries and things like that. But where there's an extension of where you think there's going to be a problem, a good idea from an insurance purpose is just to retain the records. Again, it's about having the justification. I think key to that is where you are retaining them that you have a policy and procedure that commits you to do that and also you're putting a note on the file that you're retaining with the reason why you're retaining it for longer.

Scott: Of course, it's not the whole file that necessarily you keep. There could be documents on the file that you should be sifting through, getting rid of them. They fulfilled their usefulness throughout the time, because you're only supposed to maintain the personal data for as long as is necessary and some if it's not necessary, quite frankly, and you don't need it six years.

Seamus: Great opportunity with GDPR is to review all of our policies and procedures to look at the information that we don't need to have and either to no longer require it on our forms or our applications and also to discard that information if we really don't need it because, again, information that you have is making you liable for that information that you're retaining.

Scott: Okay. We have another GDPR question that was sent to me directly. Don't do that now. My phone is on do not disturb. You won't get it through to me. If you have questions. You can use the chat box. You'll see it there on your screen. Type them up. They will be anonymous at this end. If we can get through them, we will. If we can't, we'll hold them over to the next time, which is on the 6th of July, I believe the next one.

GDPR & Subject Access Request

Q2. What information do I have to disclose in the request and can I provide redacted copies of evidence to keep the anonymity of those involved?

With all employees now more aware of their rights to access information held on them from GDPR training, I have had a request for a subject access request from an employee that has recently been disciplined.

The basis of the discipline was on reported behaviour from a number of other employees. At discipline or the disciplinary hearing, I chose to withhold the employee's names as it served no purpose to disclose. It would only cause more negative behaviour in the working environment and the testimony was such that the behaviour was undisputed.

Seamus: This is interesting in terms of subject access requests. If it has just been received post-25th of May, it'll be under the new GDPR regime. We know from that there's a reduction in the time to provide the response to that to four weeks rather than six. And you can no longer charge for it as well. Those are the preliminary points on that.

This is a typical situation that arises in disciplinary whereby maybe somebody confidentially comes to their own manager, makes a compliant and would be very uncomfortable with their details being provided or sometimes even on a general risk assessment, you can say to yourself it wouldn't be wise to provide the details of the complainant to this person. Maybe sometimes what happens is people will anonymise their statements or they will redact the statements. Alternatively, they will take parts of the statement and create one block page with maybe five or six of the comments that were contained within statements.

Really, what we need to look at is the fairness of that. It's a twofold test really, it's data protection rights of the person that the allegation has been made against because they'll be saying if this is about me, I'm entitled to know. It’s that versus the rights of the anonymity for the other parties.

Scott: Also, controlling the process because this caller here, this listener here knows the situation. There's no indication from the email I got that it was the witnesses themselves were saying, "Keep me anonymous." This was a manager who decided look, "For the sake of good employment relations, I'm going to pour oil on troubled waters. We know what's happened here. We don't want people falling out in the corridor. I'm going to keep them quiet and anonymous." I can understand that.

But from a complainant's point of view, you're saying, "Well, hold on. I want a fair trial. How do I know that these witnesses don't have it in for me in some way that their bona fides are genuine, that there isn't an ulterior motive? If I don't know who they are, I don't know if it's because I've done something bad to them or they've done something bad to me. You don't know if they're bullies. There's a whole series of issues there when you come to anonymity, particularly if in this case or as in this case, it's not the witnesses saying we are scared of this complainant. It's the employers saying, "You know what? I just want to keep a lid on it."

Seamus: Yeah. Absolutely understandable. You can see a circumstance where possibly a manager will say, "I think I can keep a lid on this. I think I can control this. I can get a resolution for all of these parties. Because the reality is they're all going to have to work together tomorrow. This business, this organisation needs to keep functioning. So there are those aspects. I suppose the real test will come down to if there was ever an employment tribunal claim taken and the LRA Code of Practice does have some guidance on witnesses.

Scott: Anonymity.

Seamus: Anonymity on it. Also, in relation to whenever you get to hearing and the right for the person to have a fair trial. Part of that aspect absolutely could be that they were never allowed to cross examine witnesses. They never knew who the witnesses were. There could be allegations these witnesses don't like the individual itself. There are all sorts of issues that can arise there. Really sometimes it's hard at times to make correct decisions and to make right decisions unless you see the whites of the eyes and the person is sitting in front of you.

Certainly, there's no doubt in the best of the world that you would have a fair trial, even at the disciplinary stage where you maybe have witnesses attend the disciplinary hearing and allow cross examination to take place. Where the circumstances permit that and where that is a reasonable and sensible action to take, I think it should be taken, where you are the manager and you're of the view that isn't something that you're going to be able to do, that there's maybe threats that have been made or there's maybe a concern there would be . . .

Scott: History of violence or something.

Seamus: Yes. You have those sorts of issues. You as the manager will have an understanding of that, where specifically the person who's coming to you and saying, "I want to raise a complaint, but I want this to be kept anonymous." It can be hard to guarantee that the individual that at the time. Really, what you need to do is weigh it up and assess it. It comes down to your justification and if it is justified and if it's the correct decision to make based on the circumstances, I think that should be recorded at the time in writing so that if it is challenged at a later date, you say, "Well, look, this is the circumstance that I was presented with at the time and I believed this was the right step to take."

Scott: Just before we move on, we've got another GDPR question coming in on the chat box. There's nothing, really that would in law allow a witness to say you can never use my name at any stage. The bottom line is this could be discovered if it goes to tribunal. It seems to be an internal disciplinary matter. It's not dismissal and so on. If it were to go to that level, there's a very good chance that information would be discovered and there's a very good chance the tribunals would look at the Walkers Snack Foods case and they'd look at the Linfood Cash and Carry case about what you do when you have to anonymise witness statements.

Really, they're looking at a big justification of threats of violence and such towards witnesses about steps the employer would have to go through to make sure they trust the witnesses and so on before they go forward. There's a very stiff burden, if you like, on that. The witnesses would not be able to block on the other side either. They wouldn't be able to block an employer from saying, "Hold on a second. You can't use my witness statement because it involves my name and I've got a right under the GDPR that you can't divulge that to somebody else." The GDPR is not there to stop the efficient process of discipline and grievance procedures.

Seamus: Absolutely not. It is a practitioner, it's a question that you get asked quite a lot and people do have concerns about their information and even from the advice I would give to HR advisors that would call through to me, that is definitely a concern they would have. You would say look, it's a balancing exercise. It's about sitting down and working through the ups and the downs, the rights and wrongs and hopefully arriving at a fair decision. But it does come down to fairness and ultimately, I suppose, there would be an entitlement at a tribunal stage.

I've been on many a case where we've had to go down before the employment judge and argue our case as to why documents, full documents on redacted documents should be provided and times why they shouldn't be. The employment judge will always encourage the sides to agree it themselves. But where they have to, they'll make a decision and it will be based on the principles as we talked about in the Walkers Snack Food case.

GDPR & Retention Periods

Q3. Is there any risk if you are to have all records for the same retention schedule?

Scott: A final GDPR question here just coming in the chat box—is there any risk if you are to have all records for the same retention schedule, for example, six years after leaving or duration of employment rather than keeping the likes of absence and recruitment records for say three years? Our retention schedule has different timeframes for different records and is going to prove difficult come destroying the information. The bottom line is that data is data. Everyone is separate. You really ought to have different retention periods because you don't need them. It goes back to our first question there, which is justify why you keep it, otherwise get rid.

Seamus: Yeah, absolutely. Certainly, any of the retention policies that I have assisted clients with absolutely we have a schedule at the back of the policy where we detail the types of records that are retained and we set out the reasons as to why they're retained and there are different. Within one personnel file, that could be an inch thick, there can be 50 different types of documentation contained within that. You're not going to keep it all. Certainly things like pension details that people come back at a later date and require, those are things that are important to retain and where there's a clear justifiable reason for doing it. Definitely, within each personnel file, there will be certain documents you retain for longer periods than others.

Disability Leave and Payment

Q4. In relation to disability leave, is there a consensus on whether it should be paid?

Scott: Okay. I'm sure we're going to get a few more GDPR questions coming in next month as well. But we'll move on to a different subject now. In relation to disability leave, is there a consensus on whether it should be paid? That presumably is people who are disabled, they take more time off. Is there a requirement to be paid?

Seamus: You would imagine during circumstances where they have put in leave specifically because of their disability. Maybe they are and having to undertake certain things or take certain steps. In general, my view in relation to that is that whether it is a disability leave period request that it is unpaid. We're looking at it across the board and we're assuming the employer has taken the reasonable adjustments and steps to facilitate the employee already. Certainly, where the employer has taken those steps and the reasonable adjustments have been made and there's still further leave that is required at that point, maybe my view that it shouldn't be paid. It's, of course, open to the employer to pay if they wish to pay. My view on that is that it should be a consistent approach and there shouldn't be one rule for one and one rule for another because it could just lead to problems and possible claims.

But if the idea that the business is there with employees and they're there to work, you're trying to incentivise them as well, if you start to pay people for long periods of leave that they're off, there would be no incentive to get them back into work as well.

Scott: Yeah. Reasonable accommodation or adjustment is about helping somebody do the job itself. It's not about enabling them to take time off. There is a related question that came in again recently. What if a disability discrimination act covered member of staff knows they have a course of treatment coming up. They feel they can't take sick leave fearing a warning for triggering sick absence policy. Should reasonable adjustments be put in place to enable the staff member to receive this treatment? That's specifically saying, "Don't use a procedure to sack me. Allow me time off to get this treatment and I'll be able to come back." That's, to me, is a lot clearer and more useful to the disabled person than saying, "Hey, I'm going to pay you to take time off," because doesn't help them get back to work.

Seamus: Yeah. The idea of the treatment is that they maybe will be offered a period of time of treatment, but it will assess them in returning back to work and possibly returning back to work without further time off as a result of their disability. I have a slight concern around the query in terms of the employee being worried about taking sick leave and triggering something. I think there should always be a full and frank discussion between the two parties, the employer and the employee in relation to the requirements the employee has. It does appear in the circumstances the employer is aware of the disability and is aware of the treatment that's needed. The reality is there might be an unavoidable period sickness absence. But there should be adjustments certainly to the usual trigger periods in order to facilitate the employee. My other thoughts around that are that there's usually an occupational health report that might have been maintained in advance and that could give a very good explanation to the employer about the type of treatment, the nature of the treatment, and what exactly the employee needs and how the employer can make those facilitations, can make those adjustments, if not in an OH report, possibly within the GP report or sometimes there's a consultant's letter that will set out and explain. That will give food for thought for both the employee and for the employer as to how they can work around this. It may be as well that for somebody off on a period of treatment that, although they might be able to come in to work maybe towards the end their recovery period, they may be fit to work from home and there may be facilitations that can be made again in relation to the employee working from home toward maybe the latter period and then coming back in to work maybe on a phased return building up their return to work in that way.

The employer could also allow the employee to use some of their holidays as well if they were getting at a recovery period towards the end and they felt that a break would facilitate and help in terms of that.

Scott: It's all to do with that. It's about facilitating them back to work. The reasonable adjustment is to help somebody do the job or reach a certain level that's acceptable or get them back quicker. It's not just an add on.

Seamus: No. And I think the honest position has to be that if you have an employee that has taken treatment in order to really help and assist themselves and helped themselves get back to work, I could imagine that a tribunal will take a dim view of an employer that's penalising an employee to do that.

Scott: Okay. You're listening to Seamus McGranaghan from O'Reilly Stewart. We're here in Belfast. I'm Scott Alexander form Legal-Island. Seamus, you're just drinking my water. That shows you it's live, folks.

Seamus: Totally live. Right, yeah.

Bonus Payment and Discrimination

Q5. Should absence related to maternity or disability be excluded in order to achieve a quarterly bonus?

Scott: If something happens here. Sticking with discrimination and such, we've got another question here that's come up and it's about bonus and discrimination. We have a quarterly bonus in place. One of the criteria is 100 percent attendance. Am I correct that the absence related to maternity or disability should be excluded in order to achieve that quarterly bonus?

Seamus: Okay, two-fold question. One in relation to the maternity aspect and the second in relation to disability. Quarterly bonus, I'm assuming that it's a bonus payment that's made out to all staff and it's available to all staff. The first question just on maternity, that is one of the really difficult areas in terms of the discrimination law, but again, we're looking at how the bonus is made from what the requirements of it are. It may well be the employer can be justified in reducing any bonus payment due to the fact that there is a period of maternity leave.

It really comes down to the fact that there are two exceptions to the contractual benefits. Whereas for maternity leave, in general, the employee is entitled to their full contractual benefits, except anything that isn't related to their wages or salary. The bonus, of course, would fall in with that. So, there would be an issue where the employer could deduct monies that would be applicable in the standard bonus because the employee is not there. Certainly, for anyone that would be off on maternity leave, potentially what could happen is you'll be entitled to your bonus up to the date of your maternity leave. There's a two-week compulsory maternity leave period you're entitled to, and you'll be entitled again once you return again, but during that period itself where you're off, the employer would have…

Scott: This one here, what you've got is 100% attendance bonus if you're there all the time, but in effect, what you're saying really is somebody on maternity leave might end up with say a 50% bonus because they went off 50% into the qualifying period in that quarter.

Seamus: Yeah. That's it. One to watch out for that you're not automatically entitled to that, again, the employer can take a step in order to say during maternity periods we will pay what will pay. Again, if you're doing that, it must be consistent across the board.

Scott: There are issues at the moment, of course, with cases to do with shared parental leave where you treat women who are off on maternity leave different to males who maybe taking shared parental leave. Those cases are up in the air. They're contradictory at the moment. So, it's not as if you like going towards the women on maternity and giving them benefits may have long-term repercussions. It's certainly something you want to think about before you apply it automatically, I suppose.

Seamus: Once you open that field of thought your head will quickly go into a spin.

Scott: So, what about the disabled person? The disabled person can't attend 100% of the time because they're incapable of achieving that level of attendance. I presume, I'm hoping, anyway, you're going to say well, if the reason for absence is disability related, then you could offset those ones and allow for the payment. But if it's non-disability related, hard lines.

Seamus: That's it. That's in a nutshell. Again, you're looking at your adjustment, certainly where the absence is related to the disability, the adjustment should be made. There may be other absences that aren't related to the disability at all. For instance, if they maybe had a car accident and had to take time off as a result of it. You shouldn't shy away from the fact then that no circumstances that you aren't entitled to the payment.

Scott: Yeah, because other non-disabled people wouldn't have.

Seamus: Wouldn't get.

Scott: Wouldn't have received it. That said, it's a one-sided claim, a disability claim. It's only a disabled person who can make the claim. An able-bodied person can't say, "Oh, you're paying all these disabled people who don't attend, you should be paying me." They don't have a claim there.

Seamus: You have to say - comparison.

Scott: It's only in one circumstance. Again, that reasonable adjustment may not give 100% of the bonus.

Seamus: It could be just a slight reduction of it or a larger.

Scott: It can be a reduction or something.

Seamus: Yes. I think that will be dependent upon the disability and the ability or how the disability how it impacts the employees it handles.

Scott: Okay. Let's move on to a different subject. You're listening to Scott Alexander from Legal-Island and Seamus McGranaghan from O'Reilly Stewart. We've got a question there about the Bradford Factor. I'm going to leave that one. If you've got an issue either . . . Hopefully, we'll get back to it before we finish. If not, all the listeners out there if you want to contact Seamus directly with a question, hopefully he'll be able to get back to you and explain it in a bit more detail. In fact, we had a question a while back about a calculation of pay, which is so complex I could barely read it, never mind read it out.

So, if you want to—whoever wrote that one, if you want to write into Seamus, hopefully we'll deal with that. We've got about 15-18 minutes left.

Volunteering and Pay

Q6. I want to deal now with volunteering and moving into contractual areas. This one has come up as shadowing and induction. Prior to commencing employment, new staff must spend time shadowing existing colleagues and attend a one-day induction session as part of their training. Should that count as working time? Therefore should it be paid?

Seamus: Yeah. This takes me back to my first job that I did. There was a period of induction that had to happen which I wasn't paid for, which I think I'm still a bit bitter about, but yeah, there is a difference in relation to training and to work and then again in relation to shadowing and induction days in terms of working time and the right to payment in relation to that.

But strictly speaking, there's no entitlement to pay when it comes to if you're doing some work shadowing or if you are engaging in induction for the job itself, and certainly a lot of the jobs now that you see out there it's almost built as a mini trial period as well and it really is up to the person to attend the induction and take out what they can get whether if they're not entitled to payment. Some companies will pay. There's no doubt about that but there's no straight entitlement for it. And in around we see a lot of this developing recently in terms of interns and people that are coming into organisations for a week or maybe for two weeks and they're shadowing and they're trying to get some experience. Certainly, there wouldn't be any obligation on the employer to take steps to pay them.

Scott: It really comes down to what the person is doing. I haven't seen a claim in the press from an intern who says, "I should be paid," who hasn't won their case.

Seamus: Yes.

Scott: It really comes down to what they're doing. If all you're doing is shadowing and getting experience and maybe writing up a report for your college or something like that, okay, that's a training contract. There's no requirement to pay. But if you're doing the work, if you're sitting ‘by nelly’, if you're on the checkout and you're processing the goods in order to learn, that's real work. I think if you go to employment tribunal and say, "Hold on. I haven't been paid. I want the national minimum wage." I think a tribunal would agree.

Seamus: Yeah. Where you are doing the work as it goes the workers entitled to paid. If you're doing the work, I mean, certainly, you need to be careful in terms of someone that comes in and maybe they are doing a bit of shadowing and maybe they start to undertake some photocopying for you or typing a database for you. If it's crossing the line into where they're actually doing work well than just shadowing you around and watching what you're doing, certainly it can fall into working time and the right to pay.

Scott: Yeah. The downside, of course, is some employers don't want anybody in and they're doing it for a friend and one of their employees says, "Look, my son or daughter needs some kind of workplace experience, can you do it?" I don't know if they're going to get paid for that because they don't want them to be paid for that. They don't preferably want them to be there, they're doing a favour. I don't know they would necessarily, in those circumstances, notwithstanding, they may be given a piece of work, be required to be paid. Nothing stop the employer doing it but I don't know that they would have such a great case.

The other thing, of course, for those periods of induction and internships and such is that quite frankly, the employee, if they were to take a claim, they would never get employed.

Seamus: Yeah. Well, that's it. There's such a deterrent there for the worker to really do anything about it because they're going to more or less spoiling their chances, at that point. It's the way that goes, unfortunately, with that one, but definitely you have someone that's actually undertaken work and they're sitting at a desk and working through papers and things like that, I think they can establish clearly that they're doing work. They're entitled to payment.

Scott: And of course, they could wait until the end of the period and then put in the claim.

Seamus: They could do - yes.

Scott: Which is more likely.

Seamus: If they've got a job somewhere else, certainly there's not a difficulty with it.

Bradford Factor and Stress-Related Absence

Q7. We include stress and depression in the Bradford Factor. Should this be included to meet a trigger or not?

Scott: Here, I'll go back to this Bradford Factor one because it actually relates to the next set of questions we're going to be doing. We include stress and depression in the Bradford Factor. Should this be included to meet a trigger or not? There's no legal definition of stress, but of course, depression would be one of those areas that would be covered by Disability Discrimination Act 1995.

Seamus: It can fall in certainly to a disability and then obviously if you're using that as criteria, you need to be very careful about how you're applying that criteria and whether or not that is discriminatory to the employee.

Scott: It all comes down to basically what you're doing is you're applying a criteria and a practice to everybody, but it has a bigger impact on certain people. There's no indirect discrimination applies to Northern Ireland thanks to the Malcolm and Lewisham case. What does happen is you have to consider is it a reasonable adjustment to take that criterion out and say we're not going to do where there's absences for depression or whatever it happens to be. That goes back to some of the previous questions. Should you be applying the same standards to somebody who's disabled or not? It has a bigger impact on them and they can say you should make a reasonable adjustment in my circumstance to enable me to at least do the necessary parts of the job.

Seamus: Yeah. Give me the same crack at the whip as everybody else, is essentially, that's the purpose and the nature of it. I would be careful certainly in relation to the depression, the stress. You might be okay on that one if the person is alleging the stress is a result of their work. You can see the slight and scale on that certainly, but depression, I would be careful if they see too many occupational health reports that come back to say this is likely going to fall under DDA. Ultimately, they say, of course, that's a legal matter but we take our starting point from that.

Sick Absence and Patterns

Q8. What would be the best way to proceed when you have an employee who uses the 28-week SSP statutory sick pay and then comes back to work until there is no join period again and then goes for another 28 weeks?

Scott: Okay. We have somebody here. I supposed it's inferred that somebody is swinging the lead here, Seamus. What would be the best way to proceed when you have an employee who uses the 28-week SSP statutory sick pay and then comes back to work until there is no join period again or it's usually six weeks, I think, there has to be as a break and then goes off again for another 28 weeks, comes back again after the 28 weeks and is now off again. So, there's a three big jumps period where they get statutory sick pay, they come back enough to establish it and they're back at work. They pay their stamp, they qualify for SSP again. It's a completion here of two different things. They're entitled to a benefit, which has got nothing really to do with employment so is the pay to national insurance. But what the employer's got here is somebody who clearly doesn't want to be at work. It would appear, right?

Seamus: Yeah. It would seem that way.

Scott: Only comes in so that they're long enough to qualify so they can go off sick again.

Seamus: Yeah. It's a red flag. I think it if happens once, it's an automatic red flag for employers, certainly. I do get a lot of queries about this, and people wanting a magic wand in order to stop it from happening. I think the practicalities are this is about attempting to manage a period of sickness. I think the practical steps for anyone out there is you're looking at regular welfare meetings in relation to the employee, you're not leaving huge gaps in terms of the employee sickness that you're not waiting towards the end before meeting up with them again. That you're doing that continually and you're keeping on top of the employee and you're getting an understanding of what the illness is and what the likelihood of them returning is.

Scott: Yeah. Just because they're entitled to 28 weeks SSP doesn't mean to say you have to wait 28 weeks to take any action.

Seamus: Certainly you don't want to get to a point where you're deemed to be harassing the employee. It is a good idea maybe to look at whether that's on a monthly basis or every six weeks or something like that. I think also you have to look at the circumstances. If somebody has a serious debility and you know that they're not going to be fit to come back within three months, it's always good to keep in touch with them, maybe not necessarily having a welfare meeting, but keeping in contact with them, especially whenever you're concerned that they may be taking steps to come back for a short period in order to go off again.

The other thing is to keep on top of your medical evidence and keep an eye on the sick notes that are coming in, and look to the GP for reports, if necessary or from their consultant if they're in consultant care, or again, just independently, through occupational health, which is usually the best way to go in relation to that. If you do get an occupational health report, or you do get a medical in, meet with the employee in order to discuss the medical, often the employee will say, "Look, I've seen that in advance before it went to you. I know what it says. I don't need to meet with you."

It's important you do meet because there could be details within the medical report you do need to discuss and also might help the employee to return. Where there is a proposal to return, I think there's three things that you can do. Number one, always get a fit note in terms of that if they've been out for a long period, you're entitled as the employer to have a sick note from the doctor.

Alternatively you can send them back to occupational health for confirmation that they're fit to return. And always have that return to work meeting and to discuss the possible adjustments that might be needed or if there's a phased return or whatever there is.

I think the last step in the relation of that is upon their return, monitor the employee, make sure they are attending work, that they're on time, there isn't any sign that they're going to be off. Their motivation is high. Where there is issues in terms of the employee and you know that the employee is simply back for a couple of days, or they're back in for a number of weeks in order to get their entitlement again, you can look at this, take a step back from it, and look at it over a long-term sickness period. If your triggers have been hit in respect of your policy and procedure for absence, don't shy away from your disciplinary policy and decision.

Scott: Yeah. The fact that it's happened in the past shows a pattern. Don't be afraid to say ‘there is a pattern here’.

Seamus: Absolutely. You'll be very quickly able to establish that certainly if you're on the third go-round that this query is about. There's an established practice that's happening with the employee and what I would be doing in any kind of letter out to the employee inviting them into disciplinary, I'd be setting that out clearly in black and white and saying here's the pattern that is happening. We need an explanation of it at the disciplinary.

Scott: Okay. We have another question a bit about sick leave but it's more about holiday leave and move onto this one if you don't mind. We have five minutes left or so and there's another question or two that have come in. Hopefully, we'll get to those just before we do.

Garden Leave and Statutory Payments

Q9. If an employee is on garden leave after resignation, so they have resigned and they are on garden leave as opposed to dismissed on garden leave, do we have to pay them for any statutory and/or public holidays accrued during the notice period? Do they get any additional pay at the end of their garden leave?

Seamus: Two aspects we need to look at here. I supposed one is that we have the statutory process and we have also what the contract says itself. They would be entitled to all the usual statutory entitlements while they're on a period of garden leave.

Scott: Now, if they have resigned, the statutory period is only one week. If they've been dismissed, it could be up to 12 weeks.

Seamus: Absolutely, yeah.

Scott: But they could have a contractual requirement, and if it's garden leave and they've resigned, you would imagine it's going to be a contractual period, so they'll get all their contractual entitlements. It's probably three months or six months or something like that.

Seamus: Yes. And they're entitled to all of that. I suppose during any period of garden leave there'll be a specific reason as to why the employer has placed that employee on garden leave and it's really about writing to the employee and setting all that out and detailing it to them. Also, within the contract, there may well be a right for the employer to insist upon the employee using their holidays during that period of garden leave so there isn't a build-up of another payment at the end of it. So, it's worthwhile to come back and check it in the contract or if your contract doesn't say that, maybe thinking about a revision in terms of it.

Scott: Again, we've covered it before I think when we were looking at people where there was restrictive covenants in what people get, but certainly under the contract you're entitled to everything under the contract. If you're on statutory notice periods, effectively you're protected whether you're on holiday or whether you're on layoff and such like, you get full pay throughout the period. You don't necessarily get full pay during garden leave under the contract if the contract doesn't allow for it.

Seamus: Exactly, yeah.

Scott: But that's because you get a longer period than statute allows. But you're entitled to all your contractual entitlements.

Seamus: Yes. That's it in a nutshell.

Scott: It could well be the case that you end up with extra pay at the end because you haven't heard all this. One final question here has just come in. It's about consultation. So we moved the lay a little bit.

Variation to Terms and Consultation Periods

Q10. Changing on-call rotas to include a wider group of people, what level of consultation would be advisable that impacts on approximately 60 people across the country?

So, presumably that's a variation to terms that would fit into the collective redundancy requirements and so it would be a 30-day period, I think, wouldn't it?

Seamus: It would've thought 30-day period. Obviously, you're checking if there's trade unions involved and you're appropriately consulting with the trade unions or elective, or elected representatives and things like that as well. It is a variation to the terms and conditions of employment so you're looking at getting agreement in relation to and anything you're looking to vary. But yeah, 30 days would be the period.

Scott: Again, I suppose the scope is who you consult with. If it impacts on every individual, as this will because their on-call rotas going to change, I think everybody has to be involved. It's not just a question you can just go into trade unions, which you might have to do if there's a trade union.

Seamus: Yeah. There might be.

Scott: This is personal stuff. If I'm not going to be on call every other weekend as opposed to once a month, I really want a say in that.

Seamus: Of course, you do. Yeah. It might not be as bad as that and it may work better for those that are on the existing rota and there's got to be some changes in that respect. Again, consultation is all about presentation. Where employees are losing something, they tend not to want to agree unless they're getting something back. It tends to focus the mind of the employer as well.

Scott: Just to follow up on that question, it doesn't particularly matter if it's in the terms and conditions where it would be actually a contractual change or if it's in the job description because it would probably fall on part of the terms and conditions of employment anyway. And if it's being practiced . . .

Seamus: It's a customer practice, absolutely. Yeah. If the customer practice is built up and it's the expectation of the employee, if you're making amendments to that.

Scott: It's not necessarily a case where we were chatting about this, the employer could change the terms of agreements with agreements. It's all very well consulting. But consultation means with a view to reach an agreement. And if I have a contractual entitlement to something, I would expect something in return in order to agree to that change. So good luck whoever you are.

Seamus: There's a good LRA policy on it on variational terms and conditions of employment, very useful document, and it really does contain everything what you need to know on it.

Scott: Okay. We're going to have to leave it there for another day. We are back our next webinar is on the 6th of July. Hopefully you won't all be on holidays. You will receive a survey most of the questions we get come through that survey, so if you wouldn't mind filling it in, even just to leave the kind of questions you want for the next month - that would be great.

If you do have any GDPR and other e-learning problems or issues, we do e-learning at Legal-Island. You go to the e-learning section [of our website]. In fact, I'm on the radio talking about GDPR this Sunday on Radio Ulster. If you've got nothing else to do on Sunday, and it's so good they're repeating it on Monday, you can listen to that me, Ken Macdonald and others on radio also. The Annual Reviews of Employment Law conferences are now out and most of the program has been finalised for the 8th and 20th of November.

Indeed, if you want to log into this webinar on the 6th, go the events pages as well. The transcript will be up in a couple weeks. You'll be able to stream this webinar if you've missed parts in an hour or two. You go to the resources section. Thank you very much for listening. Thank you very much to Seamus. And we'll see you next time. Bye, bye.

Seamus: Thank you.

 

This article is correct at 01/06/2018
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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