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Uniforms & Unlawful Deductions; GDPR & Fit Notes; Discipline v Attendance Procedures; Mediation, PILON; & Much More

Posted in : 'Any Questions' Webinar Recordings on 4 May 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

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

Transcript

Scott: Good morning, everybody. This is Scott Alexander. I’m from Legal-Island. I’m with Seamus McGranaghan from O’Reilly Stewart. We also have Hannah McGrath from O’Reilly Stewart’s employment team and Claire Marley from Legal-Island. She’s doing the technical stuff. Hannah’s doing all the research necessary and any viewer questions that come in.

We’ve had a number of questions have come in directly on my phone. Don’t do that now. It’s switched off. But you can use the chat box that you’ll see on your screen if you want to send them and we’ll take some live questions. We’ll give them to Seamus. We got a question just in and I think what we’re going to start with this and move beyond the advertised one. We’ve got an interesting one, Seamus, about uniforms.

Uniforms

Q: If you require staff to wear a uniform do you have to provide it? If so, can you pay a weekly amount into their wage or can you deduct a reasonable amount?

So, let’s deal with that first if I can find the question, here we go. ‘If you supply jackets, blouses, etc., for requesting that staff wear black trousers and shoes, do you then need to provide the shoes and trousers, or does the employer need to do that? If you do have to provide, can you pay a weekly amount into the wage for the items or can we deduct a reasonable amount from the wages if we require the employee to pay? So, what’s reasonable? We’re asking somebody effectively to pay for part of their uniform.’

Seamus: It is an interesting question. It’s one that I was just doing some research at the start of the year. But essentially, what you’re looking about here is it’s a contractual provision with respect of uniforms, there should be something within the contract that details the issues out into the contract, what the requirements of the contract are. Really, the key thing from a legal point of view is looking at the minimum wage aspect.

When we come about uniforms, I remember my own days, you got a top to work and you were required to wear black trousers, black shoes. There was no requirements in terms of additional funding or anything that was provided in relation to that. I think the employees do need to be careful where you’re looking at the minimum wage aspect so that the employees that are in the lower scale in terms of salaries.

Scott: So, if you were asking them to contribute or deducting money from a salary, if that falls below the national minimum wage, that’s unlawful.

Seamus: Yes. It’s going to lead to problems, particularly with the revenue customs. I’m aware of previous clients of mine in terms of complaints and things that have been needed. So, you’re really looking at issues in and around what the contract says, does the contract provide for the employee to wear a uniform and was that signed up and agreed in advance of the person taking on their employment.

Scott: This may not be a full uniform. This might be just a dress code. So, you’re saying, ‘Wear black blazers and shoes.’ You go into bars, you find that kind of thing, the bar won’t supply black trousers and shoes. They all wear different black trousers and different black shoes. That’s probably reasonable enough that you expect somebody to turn up if they want the job, you’re wearing a fairly basic . . . call it a uniform, but it’s not, really, it’s a dress code. That’s fine.

Seamus: That’s probably what our expectations are for a lot of those jobs. Going back to the piece ‘The Guardian’ ran back in January, they were really looking at offenders in relation to national minimum wage. They looked at companies such as Wagamama, TGI Fridays, Marriott Hotels, Karen Millen was also thrown in there in relation to that. They had a total of £1.3 million in fines that had to be paid back to employees because of those issues in terms of how the contract was drafted in terms of the uniform itself. Wagamama, they had to pay over £133,000 to 2,630 workers.

It’s interesting because they do cover off in relation to the fact that the employees were required to wear black jeans was the requirement. There was a complaint then in relation to the fact that I’m asked to wear black jeans but I don’t have black jeans. I’m going to have to go and buy those, whether or not there’s a sum of money that has to be paid in relation to that.

The other interesting one was at the Karen Millen shops, their employees were required to wear that brand of fashion and they were required to buy it. They did get a discount in terms of it, but if you’re an employee that’s earning £30,000, £40,000 a year and it’s your requirement in the contract, I don’t see a difficulty with it. But you do need to be careful where you have an employee in a minimum wage, maybe the student-type jobs and things like that that you’ll get. Maybe they’ll need a contract of eight to ten hours a week and they’re required to buy certain items. Ultimately, they’re going to fall below the national minimum wage.

It does bring me back to a few years ago. I assisted a client in terms of it was a client in the hospitality industry. They had on-site accommodation provided for their workers. They would have a lot of foreign national workers and they charged for the accommodation and they actually deducted that at source from the salary, so whenever the employee got their wage slip, they could identify that there were deductions being made, and that’s important in terms of the employee being aware of any deductions that were made, but the employee was aware of what they were paying.

To be fair, they weren’t paying a huge amount of money. It was a well-reduced rate they were being charged. But again, they were workers that were close to the threshold in terms of minimum wage, revenue customs looked at and they investigated it. They interviewed my client in terms of what it was they were doing and ultimately, they had a fine to pay and they had reimbursements to pay back to the employees as well. I think for any deductions an employer is making from an employee, always that source will go back to the contract and bear in mind then the minimum wage issues as well.

Scott: Just for clarification, if this were a PPE, a personal protective equipment issue, then it was to stop any damage that happens to the employee, the employer would have to provide and pay for all that. So, they have to pay for the safety boots and hats and all that kind of gear.

Seamus: Yes.

Scott: That’s not the case in this particular instance, it’s just on almost a uniform and a dress code, but if it’s protective clothing, that’s the employer’s . . .

Seamus: It’s different. Yes. That’s the employer’s responsibility. That’s a health and safety matter. So, you’re talking about if you’re working with toxic materials or anything like that, appropriately you should be protected in terms of that and you’re not expected to deal with the cost of those yourself. That’s for the employer.

Scott: Just on this question, if you’re making deductions as an employer, you have to have that in writing before any deductions are made from wages.

Seamus: Yes, unlawful deductions, that’s right. Again, you’re looking back to your contract to make sure that the contract is clear in terms of that I would have come across clients of mine, in particular I recall a woman at a petrol station where they had a lot of drive-offs where people hadn’t paid for their petrol and the employer would come back to the employees and say, ‘I’m deducting this money from your wages,’ not in the contract, not what the expectation was and illegal.

GDPR

Q: ‘Under the forthcoming GDPR regulation, would you consider it appropriate for HR departments to share GP fit notes which specify an employee’s medical condition with an organisation’s payroll department or should HR simply advise payroll of the dates specified on the fit notes to specify a period of sickness and absence?’

Seamus: This is a good old GDPR question. There’s lots of these floating about at the minute, certainly I’m aware as we get closer to the date on the 25th of May that there is, I can see from my own inbox and my emails there’s a lot of clients asking questions in terms of GDPR. I think specifically in relation to this question, I would have a concern as to why the payroll department needs to know the reasons for the employees’ absence.

Certainly, whenever we come back to GDPR and we’re dealing with personal data, it really is on a need to know basis that you’re looking at that. I don’t understand why payroll would need to know the reasons unless they need to be aware of what to pay, but it’s the manager or it’s HR that would be dealing with notifying payroll as to what the payment should be. I can’t see a justification unless there’s something in particular in their software that they use or something along those lines as to why payroll would need to know those issues. So, I would have thought the answer to the question is that the pay was . . .

Scott: Keep it to yourself.

Seamus: Absolutely. That’s for HR to deal with and retain the records.

Scott: It is difficult to see why you would want to share that information. What it does is it adds another layer of risk to any organisation. Somebody else is holding this very personal, special category style of data that shouldn’t be used. We were chatting earlier about you have a gossip in the payroll department that starts telling everybody that so and so has got IBS or whatever, it’s not something you want, whether it’s a data protection breach or not. It can cause employment relations issues.

Seamus: Absolutely. I suppose it is that element that you’re put at risk. If there is a justification for it and there’s a clear justification as to why payroll would need to know those details, then you need to consider that and if it’s justified, then it’s a legitimate reason for the operation of the business, then okay, fair.

Scott: Send it in to us because we’d like to know what the different reason is.

Seamus: I’d say to that it’s a confidential issue in terms of someone’s medical issues. You wouldn’t want everyone knowing that and it would be that aspect of someone within the payroll department and maybe not even on a gossip basis, but just doing it inadvertently one day and speaking to someone and saying, “Oh, they’re off because of . . .” You can understand if it is a . . .

Scott: Sensitive.

Seamus: A sensitive issue that you wouldn’t be happy about that yourself.

Scott: You’re listening to Seamus McGranaghan from O’Reilly Stewart. I’m Scott Alexander. I’m from Legal-Island. This is Employment Law at 11:00. If you’ve joined us late, don’t worry. You can pick up the live stream—well, pick up the live stream now, but you can pick up the recording in about an hour’s time on the Legal-Island website if you go to the resources section. We also have the transcripts available from all the past webinars that we’ve done.

We’re in the process of breaking down all the questions so they’re even more easily searchable, so you just put one or two keywords in and you can pick up all the questions, we’ve dealt with. Must be a couple of hundred questions now since we started with these webinars at the tail end of last year. So, hopefully you can get those and you’ll find those in the resources section. If you want to listen to further webinars, you just click on the events pages on Legal-Island and you can register there. You can register each time, so tell your friends if you like it, and if you don’t like it, keep it to yourself.

Sickness and Absence

Q: ‘Our organisation has high sickness levels of sickness levels, absence, compared to the UK average. We use a trigger system to manage sickness absence, which ultimately culminates in disciplinary action in line with our sickness absence policy. I understand that this is the case in many organisations. Is it reasonable to discipline an employee for being sick? Could you suggest a better or fitter way to manage sickness absence which would be viewed more favourably by a tribunal if it got that stage?’

Seamus: Well, this trigger system that the query relates to, this is one that you’ll come across often enough in terms of employers that have systems in place where if you have so many days off on sick, there will be a trigger and it will result in possibly a disciplinary meeting followed by some sort of disciplinary outcome and then you’ll usually see the scale that will apply. It will start off maybe with a verbal warning, followed by a written, and ultimately dismissal, as well as really what we’re looking at rather than it being a sickness issue and penalising somebody for being sick.

It’s better to look at it on the issue that it’s a capacity issue in terms of their ability to do the job. What you do need to have is a really good attendance policy in place that will set all this out and detail it out. But ultimately, if you are dealing with capability issues with employees that are not attending work, you’re entitled to move through your procedure in terms of that. I don’t have a difficulty with it.

But I think that rather than looking at it from a sickness point of view, that you’re looking at where the capability, is the person capably fit to do the role and do the job. If they’re not, if the policy is clear about what the expectations are and there’s a process in place in terms of saying to the employee, ‘We are concerned, we’re unhappy with your level of absence,’ for whatever reason because it might necessarily just be they’re sick.

There could be other issues for it, but you’re working through a process, you’re giving the employee fair warning and saying to them look, this is the first occasion, but it’s red-flagging up here that you’ve had so many days off, the job’s there need done and there are apparent capability issues in terms of you being able to do that and working through that process.’

Scott: It’s really just the language. You can use a disciplinary policy for intermittent absences if you want, but it’s more about “we have certain standards of attendance” and an absence policy might be a better one. Our tribunal is not going to really hold it against an employer if you warn and discipline and dismiss an employee because their absence levels have been poor or whether you do that through an absence policy or a capability policy because they’re incapable of achieving your standards of attendance.

It’s the same thing but it probably is cleaner just to break it and say, ‘These are our standards, these are our triggers. These are our targets,’ whatever it happens to be. If you don’t meet them, we will take you through a process.

Seamus: That’s it. It’s just, I suppose, again, back to that repetitive element of discipline. You’re always following through on your statutory procedure, your one, two, three procedures with that. There can be an inclination sometimes with employers that they’ll get very frustrated in terms of someone they’ve spoken to about their absence and they continue to be bad attenders at work.

Even this week, I dealt with a case where the employer simply just out of pure frustration, pulled the employee and said, ‘You have been warned before. I told you in advance what the problems are and you’re gone. I’m sacking you on the spot.’ They fool you after that and you think, ‘What about your one, two, three procedures?’ And they come back to you and say, ‘Look at all the absences, look at all the times.’ It will be maybe the Monday-Friday aspect of absence where you can see there’s a clear pattern and a clear issue that’s arisen, but unless you’re following through on your statutory procedure, you’re going to be left in difficulties.

Scott: The other problem there you have is the employer leaves it too late to deal with it. So, it builds up and builds up and you get that frustration. I understand that from an employer’s point of view. But really, their job is to nip it in the bud early and before it becomes a trend or a pattern or you’re looking at an alcohol issue or largely an attitudinal issue if people have got intermittent absences, they’d rather be off than be at work. That has to do with motivation and engagement and lots of other non-employment issues, really.

Seamus: The danger of not nipping it in the bud at an early stage is simply that the employee will think this is acceptable. They’ll say, ‘Sure, I’ve done this before, it hasn’t caused a difficulty. I’ll just head out on a Sunday night and not worry about it because I’ll just call in sick tomorrow.’ That’s the mentality that can arise, but certainly from a management point of view, dealing with it early is key.

Lawful Deductions

Q: ‘If we are making deductions for overpayment of wages, should this be written up and agreed in writing?’ This is, they think, lawful deductions from wages, but does that have to be done in writing before they take the deductions. Effectively, if it’s not got taxed, it’s generally got to be in writing before you make a deduction.

Seamus: Yes. The key thing would be to keep everything in writing in terms of what you’re doing. You have to have some sort of written communication with the employee in terms of if you’re going to make the deductions. Often, when there has been overpayments, and this is something that does happen with employers where there has been an overpayment to an employee, and certainly, it’s not acceptable to just say, ‘I’m taking all the money back next month,’ because that cuts down one what the employees’ obligations are financially. So you want to work with your employee in terms of that. Certainly, it is best practice that if you’re going to do that, there’s something in writing in place about it.

Scott: If they’ve just been overpaid, you could take it from them, but a reasonable employer would have a more reasonable way of saying, that’s not your money in the first place.

Seamus: Yes.

Scott: I was actually thinking there’s maybe been something here and the employer has to repay some money in that situation there or they were trying to direct it for something else.

Seamus: Yeah.

Scott: In that situation, because it’s not a lawful requirement to deduct tax for national insurance, where you don’t need that in writing, you just take it out, those ones in general do need something before you start the deduction. If you’ve given somebody a loan and they have to repay it, then you have to have the right to deduct in writing . . .

Seamus: You want the terms of the agreement written down, absolutely, and where you are going to make those deductions that you’re clearly setting that out and writing to the employee also and again, that it’s clear from any pay slip that they receive that that has happened.

Scott: Okay. We’ve got a quick one here just on sickness. We’ll come back to one or two other sickness things if we have a chance. We’ve heard this before, but just for clarification, “When does the accrual of annual leave stop whilst on sick leave?” So, employees get annual leave, they accrue for a period, so what are the rules around that? They’re European-led.

Annual Leave

Q: When does the accrual of annual leave stop whilst on sick leave?

Seamus: Yes. We have looked at this before, but the position is that your holidays do accrue while you’re off on sick. Roughly speaking, it will carry over. The guideline principle is about a 15-month period that it will carry over for and the employee is entitled to use those holidays. That will continue to accrue up to that point. Then if they don’t use them, they’ll lose the entitlement around that 15-month mark. That’s sort of what we’re taking from case law at the minute.

I suppose it’s just about monitoring the build-up to the holidays and seeing if there’s a best way. Often, what I will do is I get calls from clients that say, ‘They’ve built up all these holidays, can we pay them some of it?’ Or the employee will call and say, ‘Can I use some holidays? Even though I’ll mostly likely attend work.’ It’s working with the employee for the benefit of the business but also for the employee. In general, the terms you’re talking about, the carryover period on accrual of up to around 15 months.

Scott: Okay. Another question has just come in on the chat box, another payment one,


Q. ‘What can an employer do if there is an overpayment on an employee’s last pay before they leave the organisation?’

Seamus: We had a case similar to that recently where the employee had signed an agreement with the employer in terms of examinations that have been carried out that the employer had paid for. There was a claw back provision within the contract. The employee was just making the decision to leave Northern Ireland and move over to England. But there was a substantial amount of money that would have been owed at that point and the employee would say, ‘We’re just deducting it from your ages,’ which was leaving this employee with around a few pounds of a salary.

Scott: But things are much cheaper in England (joke).

Seamus: That was the panic because everything was going to be so much more expensive. What we did, we looked at it and we did our best, but ultimately, the employer contractually had a right to do it. It was set out in writing. It did seem unfair from my client’s point of view, but the law is with the employer in terms of deductions for overpayments.

Scott: Well, the trouble is if the employee goes, how do you get it back? You have a contractual right to get anything overpaid but you’re not getting money coming in because the employee has gone.

Seamus: You lose all contact at that point, out of sight, out of mind, as sometimes can happen with employees whenever there’s money and maybe a new life somewhere else and it’s the last thing on their mind and even trying to set up things like direct debits and payments into the bank don’t always work because they’re very easy to stop.

Scott: There are other issues, everyone. Maybe we’ll discuss those next. We’ll tick them off a bit, estoppel where’s somebody’s been getting a payment for a period and relied on it, but if you’ve got questions around those, maybe we’ll leave those to next week. We’re encouraging everybody to send in the questions. There will be a questionnaire at the end of this, obviously, and that’s where we get the bulk of the questions that we get through. Other ones come through to Seamus or me, usually the week before or the week of the broadcast that we have here. That’s fine too.

If we get some in the questionnaire, it gives us a little bit more time to do some prep and do some more in-depth research from O’Reilly Stewart’s point of view. So, there are other questions coming through, but I’ll get to one that we received before and it’s moving away from the issues that we’ve dealt with, I think.

Mediation

Q. ‘An employee contacted the Labour Relations Agency, the LRA, and wanted to take her and another employee that she’s fallen out with through mediation. Frankly, we just want the backbiting to stop. It’s causing a terrible atmosphere in the office. What does mediation involve and are there any drawbacks?’

Seamus: This was the first thing I want to mention about this is we have a proactive employee that has approached the LRA and wants to go down the line of mediation. The most appropriate step for that employee is to approach their employer and give that indication because the key with mediation is that you have to have two willing parties that are willing to engage in mediation.

So, the employer can’t force the employee to engage in mediation. They can certainly encourage and explain the process and what the potential benefits of it would be, but they can’t force it. So, this employee has to approach the LRA directly. But really, they should be going to either HR or to their line manager and advising that there is an issue and they want to resolve it that way.

Scott: Of course, you need the other employee to agree as well. You can have mediation between two employees, but both of them have to agree to go along. And it’s a very confidential situation. So, the employer won’t probably know what the outcome is other than they’ve settled their differences, unless there’s a requirement for some kind of training or anger management or whatever it happens to be between the two employees that comes out of the mediation process itself. So, the employer is taking on trust that in this case, the LRA has mediators, but it could be others that will do the job to bring them together. But the process works.

Seamus: I’ve used it. In terms of mediation, this question is about what it involves and are there any drawbacks to it. Most of the policies that you’ll see in respect of those grievances will automatically have built into them clauses that say mediation is an option and if you’d like to go down the route of mediation, that can be facilitated.

Certainly, I’ve used the Labour Relations Agency in terms of mediation and that has been excellent. It doesn’t always work and you have to accept the limitations in terms of mediation, but my experience has been that it has been very positive through the Labour Relations Agency and they’ll bring the two employees in. They’ll meet with them separately. They’ll get an indication from both employees as to what the issues are, what the problems are.

Often these are communication problems between employees. Often, one employee will not understand what it is they’re doing that is annoying or frustrating the other employee. Sometimes you will get it where both employees know exactly how to push each other’s buttons but there will be root issue and a problem there and really the key for mediation is to find what is the bud of the issue here, how do the issues arise and how can we go about resolving it?

My experience with it has been that there is that separate process that starts, whether the mediator will meet with the party separately. Then there will be an attempt to bring the parties together. So, once the mediator gets to what the reasoning is, they’ll bring the parties together and they’ll have a discussion in and around what might be the best way to resolve those issues. The beauty about mediation is you can really think and step outside the box.

If your alternative to mediation is going through a lengthy, arduous, difficult grievance process where there’s going to be possibly one winner, one loser or no winners, it’s certainly the better option and I think it’s always worth an attempt. I’ve certainly been in positions where I’ve advised clients who have said, ‘Mediation is never going to work. We’re wasting our time with this,’ and they’re very surprised at the outcome in relation to it. In terms of drawbacks . . .

Scott: There are none. It’s fantastic. I’m a mediator, folks. If you want to know more about it, we actually have three videos interviewing Dorcas Crawford, who’s a well-known mediator in Belfast. You’ll find it on the website, just type in ‘mediation’ and the reviews will come up in the resources section as well.

There may be a drawback. Eventually, the solution is in the hands of the two protagonists.

Seamus: Absolutely.

Scott: They have their work cut out. They don’t lose any rights. So, if they want to go through a grievance procedure, they can. In this situation, it would solve an employer from having to deal with an interpersonal dispute. So, there are very few drawbacks there. There’s no real cost. So, if you go outside the LRA, there may be a cost for the mediator and the employer normally pays for that. You don’t pay for the LRA, but there’s a bit of delay at the moment but they’re free.

Seamus: Yeah.

Scott: There are very few drawbacks, but you’re going to come up with one.

Seamus: The only real drawback is not engaging in mediation in the first place. That’s the main drawback from it. The benefit of it as well for the employer is it’s an entirely confidential process. Sometimes within mediation, the employer will be involved and they’ll be there on a third party basis for the mediator to bring the employer in at the right time, which is usually at the end, but usually it’s a very confidential process.

The employees can speak freely to the mediator. They don’t have to worry about breaches in confidentiality. Any of the mediations that I’ve done, the first thing that you do is sign a confidentiality agreement all parties agree to. The drawbacks are essentially it can fill you full of hope and it can fill you full of . . .

Scott: Disappointment.

Seamus: Disappointment when it doesn’t work out. Sometimes, this is life. It sometimes doesn’t work out. I suppose the cases where it doesn’t work out is when you know you have a serious problem within your work place. As the employer, it’s better to know that. It’s better to know that from mediation than it is from going through a grievance process and trying to navigate your way through the relationship of two different employees all together.

My experience has always been good. I’ve used the LRA on a private capacity and I’ve done it with others from the bar library in terms of resolving cases. My experience of it is the majority of time it does work out to some extent, but there are those occasions it doesn’t and it’s back to that point because you can bring the horse to the water, you can’t force the horse to drink the water.

Scott: My experience is people are at least left better off in forum. They understand the other person’s point of view. Even if it’s not resolved . . . I’ve noticed a number of ones where it doesn’t resolve on the date, but they go away and think about it and do their own agreement. We’ll leave it there.

You’re listening to Seamus McGranaghan from O’Reilly Stewart and Scott Alexander. We’re going through various questions today. We have another 15 minutes to go and there’s one that has come through on the chat box here.

Grievances and Maternity Leave

Q. ‘We have an employee on maternity leave and she’s appealed a grievance outcome and has been invited in, but has requested the date be rescheduled due to her imminent birth. Should we wait until the maternity leave is up or make adjustments such as submit appeal points in writing or host it via a phone call?’

Seamus: I think certainly from the point of view where the employee is pregnant and is close to birth, it’s not a good idea to be proceeding with the appeal at that point. When the employee has requested space and time in terms of the birth, that should be adhered to. After that, I think it’s really a discussion directly with the employee as to how the employee would like the matter to be dealt with. It’s presenting the options with the employee to say, ‘You’re on maternity leave. This is how we can go about dealing with your appeal.’ There’s no doubt if there’s an appeal then this is going to be a stressful time for this employee. Pregnancy will be a stressful time in itself. Being a new mother will be a stressful time. Probably from the employee’s eyes, the employment issue will take a back step to all of that, I would have thought. It might not, but I would have thought that.

Scott: People change for their own maternity leave as well. You can give them some options but I think it’s about revisiting it and saying, “What do you want?” The grievance situation won’t change presumably when somebody’s off on maternity leave. It’s not as if she’s lost it. It’s not going to change in the meantime.

Seamus: It’s not going to go anywhere. I suppose it’s about adhering to good workplace principles in terms of going back to the employee and saying, ‘What is it you want to do about this?’ There will be flexibility from the employer’s point of view. Hopefully, in terms of being able to hold off on some time here and then working with the employee as to how they want to deal with it, do they want to come in and have a meeting or do they possibly as an alternative want to deal with it through some form of written correspondence setting out their points.

Scott: Long-term, if you’ve had somebody off for a year on maternity leave and they’re sitting there with a grievance on appeal, if you like, and they’re coming back into the workplace, you would hope they’d be coming back to a welcome. They’ve got all this extra leave obviously that’s been accruing, that would be resolved. It’s probably in everyone’s interest to get the thing resolved before you come back.

Seamus: I would have thought so, absolutely. The reality is it’s a long time to let the grievance sit. As things sit, sometimes they can fester and they can become worse. So, I agree, absolutely, before there’s a return to work you’d be looking to have this dealt with and resolved. There is flexibility within that time period to be able to do that.

Scott: Moving on to a different subject here, I see one or two coming in on the chat box. That’s fine. If we don’t get them today, we’ll get them next time or you can contact Seamus directly on seamus.mcgranaghan@oreillystewart.com. I memorised it. We have good memories, everyone. We won the Marie Curie reading quiz last night, Seamus and I. So, we’re very clever.

Seamus: It wasn’t just us now. There were other team members too, Scott.

Scott: I believe that we were the key members. I had the trophy in my hands and there are pictures to prove it. Anyway, moving on to performance matters, not our fantastic performance last night.


Q: ‘We have a really unhappy or disengaged employee, just can’t motivate them. I think it is time to go down a disciplinary or performance route, but suspect he’ll go off sick as soon as I ask him to an interview. Have you any suggestions on how to handle this?’

Seamus: The basic breakdown of this scenario is that we have an employee who’s unmotivated and the employer probably feels that they’ve taken all of the steps they can take in terms of trying to get the employee back on track. I would have thought that the best up here is maybe to take some time if you’re the HR manager, if you’re advising the line manager.

Doing a review of the employee, how was the employee whenever they joined the business? What did they do? What did they do under pressure? How were they motivated? Something has clearly gone wrong that the motivation has gone away. That may be to do with the job itself. It may be to do with something in their personal life.

So, before we get down the process of getting into that management process, whether it’s a PIP or some other tool that’s used, once you hit that, your options are limited in terms of their target set and if they don’t meet the targets, there’s a problem, but you have an employee here who potentially at one point, whenever they started and maybe for a period after that, they were an impressive employee. They were hitting all of the right signs in terms of their job.

What you want to find is what’s going on with the employee, what’s the problem here in terms of it. It’s probably the best thing to do is to sit down with the employee and to try to find out what is going on. In terms of alternative suggestions for that, it may be that the employee is going to tell you that they’re bored in the job and the job is easy, they’re not getting any gratification out of the job. That might be about looking for is there a project that we give the employee, if there are different aspects of the job that the employee could do.

The employee could be a very capable employee and they could be used somewhere else in the business. You may be looking at some sort of mentoring to go on in relation to the employee, maybe some sort of buddy scheme to keep in contact with the employee to find out and possibly ask that buddy what exactly has gone on with this employee, what information they can provide to you, or the type of coaching scheme was the other aspect, really trying to get the employee back on track before you go down this road.

Scott: The reason for that is that it’s going to take forever. If you’ve got to demotivate, go off sick, how can you prove that they’re going off sick as a reaction to this meeting or because they’re depressed or because they’re stressed out or because whatever? It takes a long time to go on to OH and move on to capability. Even if you’ve moved down this performance route or disciplinary route, whatever you want to call it and go back to one of the earlier questions, it’s a slow, long process.

Seamus: It’s a grind because what you’re going to have to do is you’re going to have to go through this process, you’re going to give every opportunity for improvement. You’re going to have give assistance in terms of the employee getting back to a standard that is satisfactory for the business. It’s a slow process. If they go out on sick, how long are they going to go out sick for? It could be costly in terms of bringing somebody in to cover for the job in the meantime. You can be doing occupational health roads to get medical evidence in terms of what the issues are with the employee and how you can assist the employee and return them back.

Scott: And of course, there could be an underlying issue there. If you have an employee assistance programme, they can contact somebody about and you encourage them and something else, it could well be that there’s something in the house. It may not be that they’re disengaged because of the work. It could simply be that they can’t cope with what’s happening in their home life and maybe that’s where the EAP (employee assistance programme) comes in or there’s some kind of cognitive behavioural therapy, CBT or something that would unlock that. When you go in there, it’s unknown, but your key point is you need to find open discussion to say, ‘You used to be really good. What’s going on?’

Seamus: What has happened? What’s the problem here?

Scott: Maybe it should have been done earlier. If there’s a criticism here of the employer, it’s that you wait and it goes back again to one of the earlier questions, you wait until things become a problem rather than a minor issue and had that been picked up that their performance wasn’t quite as good as opposed to it’s now rubbish, then if you picked it up earlier, you might have been able to turn it around and you would be more open to discussion before, say the depression set in or the big home life problems happened or the real boredom of the job.

Seamus: Again, it’s about setting the standards and when the standards slip if they slip too far that’s the employee’s expectation, that’s okay. That’s fine to do it that way. It is about that. Certainly, from a tribunal point of view, if you did end up at dismissal and there was a claim taken and you ended up in tribunal, the tribunal will want to be hearing that you have, I think, for a lot of employers, they can be fearful of having those conversations with employees because they fear that they’re going to say something wrong or they’re going to something is going to land them in the tribunal.

Provided you’re taking that approach and it’s a measured approach with the employee and you’re really taking the best steps that you can in order to assist this employee. If you’re phrasing it that way and you’re looking it from that perspective, it really will assist . . . if you go down the road and you’ve done everything that you possibly can, that maybe is this impression of this query is just up the point of complete frustration that they have felt that they’ve tried everything.

Hopefully, those couple of suggestions might be of assistance, but if they’re not, they probably are at the point of sitting down with the employee and having a really frank conversation and saying to them, ‘Listen, this is where we at, this is our performance improvement programme. This is the process that we will work through in terms of this. This is the likely outcomes of it.’ As a last-ditch attempt, really getting their employee to focus on that aspect and saying, ‘If the socks aren’t pulled up sufficiently enough and the standards don’t return, this is where you’re going to be at.’

Scott: That is one, two, three procedures, etc., all that kind of stuff again. Yesterday, funny enough, we were hosting a conference at our HR Symposium in Dublin. Some of the listeners may well know Dr Phil McCrea. He’s an occupational health doctor. Probably heard his name around. He’s now based in Birmingham, running BHSF in Birmingham.

But he was giving a presentation and reckons within five years, most employers will have presenteeism policies because this person is present but they’re not actually working. A lot of employers are scared to have those conversations about health before the person goes off sick. By the time they go off sick, it’s too late. They’re not coming back. If they’ve been off for six weeks, there’s a very good chance they’ll never be back. If they’ve been off for a year, the statistics show you’ve got about a 5% chance that the employee is going to come back and of course, you’ve got that gradient all the way down from when they first go off.

If you can get this person before they go off sick on this question which was written down here earlier, you stand a chance of turning this thing around, avoiding all the problems with the sickness, getting all the cover, doing all those issues that employers have difficulty with. It’s just that we’ve been brave enough to have a conversation.

Seamus: That’s it. I suppose with those conversations, you don’t necessarily have to formalise them and have three people in the room and a notetaker, it can be a one to one if that’s a way of doing it. As was key to that is maybe having some sort of note, whether it’s taken at the time or when you go back to your desk, put your note together at that point to record accurately what was discussed so there is something there in case there would be some allegation made, at least it’s just something written down you can refer back and say, ‘This is the accurate record of what we discussed.’

PILON

Q: An employee who receives PILON does not receive some of the benefits that they would ordinarily have had had they been asked to work their notice period. Is this a potential issue for an employer?

Scott: Where an individual receives pay in lieu of notice, what should this include, for example, car allowance, use of vehicle, average overtime that would have been worked, company pension scheme, private medical cover, life insurance?’ There’s quite a lot of things that people get.

‘Currently, an employee who receives PILON does not receive some of the benefits that they would ordinarily have had had they been asked to work their notice period. Is there a potential issue for an employer?’ The short answer is yes.

Seamus: Yeah. That’s it. For payment delayed notice, you should always take them back to the contract and there should be a clause within the contract that allows you to do that. A lot of times, it does happen that people do receive PILON that’s not in their contract, but they don’t mind because they’re having to work their notice period and they’re getting the money for it.

But at the higher level or not, then there’s all of the additional contractual benefits that are contained within the contract that might be excluded from that PILON period and the standard one would be that if you say you don’t need to work your notice under your contract of employment, but by the way, we’re taking your car off you today as well and it can leave the employee in substantial difficulties. So, it’s been clear about that as to what the entitlements are post the PILON period, but what would have been title two . . .

Scott: Including the name, really, it is notice of termination of dismissal that this is really what it’s about. Had you been allowed to work your notice, what would you have gotten during that 12-week period? You should be entitled to all those benefits. There should be a grossing up, if you like, so that people go away with the same amount or indeed, what you do, is you pay them garden leave. Effectively, they don’t come into work, but they get the benefits, they keep the car for those 12 weeks or they get an allowance that would allow them to get an equivalent.

Seamus: The garden leave period can be sometimes a better one for the employer if they’re worried about breaches of restrictive covenants and things like that. Sometimes it’s better to get the employee out on garden leave than it is to seek to breach any aspects of their contract as they panic about doing it. Certainly, there’s an entitlement to that under the legislation.

Scott: Okay. Well, we’re going to leave it there. I see one or two other contractual questions coming in, just more . . . maybe we could throw all of those together and run a theme, there’s a couple of sick leave and take questions we hadn’t had a chance to get through, but thank you everybody for listening. We hope that’s fine. We should have a transcript on the website probably . . . we usually get them within a week, but you’ll be able to go back to the streaming within an hour or two, if you like.

The next webinar is on the 1st of June, so that will be Friday, the 1st of June, always at 11:00. Thank you very much for listening and thank you very much to Seamus and Hannah from O’Reilly Stewart and to Claire for doing all the good stuff. Thanks very much. Goodbye.

 

This article is correct at 04/05/2018
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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