Employment Law at 11 - January 2023

Posted in : 'Any Questions' Webinar Recordings on 13 January 2023
Seamus McGranaghan
O'Reilly Stewart Solicitors
Issues covered: COVID-19; Sickness; Company Policies; Holiday entitlement

In this months Employment Law at 11, Seamus McGranaghan from the employment team at O'Reilly Stewart solicitors and Christine Quinn from Legal Island discuss:

1. Office etiquette during flu season – Covid-19 is on the rise, flu season is upon us and bugs are doing the rounds in schools across the country – so how can you help ensure a healthy workforce without ruffling legal feathers? Can you ask employees to wear a mask if they have the sniffles? Do you have to pay them if they come into work, but you send them home? What about SSP? Seamus’ answers aren’t to be sniffed at……….

2. Happy holidays the new year brings a new holiday year too and with-it conflicting requests from employees who all want them same 2 weeks off for some fun in the sun, or just to mind the kids during school holidays to save on childcare. So how do you ensure a fair system for making requests? Is ‘first come, come served’ really the fairest way? Can you, or indeed should you, prioritise employees with children over those who don’t? Seamus explains.

 

Recording

Transcript

Christine: Good morning, everybody. You're very welcome to Employment Law at 11, sponsored by MCS Group. MCS help people find careers that match their skillsets perfectly, as well as supporting employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out how MCS can help you, head to www.mcsgroup.jobs.

Hi, everyone. Welcome to the first Employment Law at 11 of 2023. My name is Christine Quinn. I'm part of the Knowledge Team here at Legal-Island, and I'm joined as usual by Seamus McGranaghan, director at O'Reilly Stewart Solicitors. So a very happy new year, everybody.

Today, we are going to be talking about office etiquette during the flu season, and we're also going to be talking about happy holiday requests.

But first things first, if we could get you guys to do a little bit of work, we're going to throw some polls up just to get your opinion on some of the topics we're going to be talking about today.

So first one should be coming up in just a second. Okay. So do you have a policy or guidance on coming into the workplace when sick? Yes or no? And this is really based around . . . It's kind of the fallout from COVID. There was a lot of kind of very strict regulations in place. Have any of those kind of bled over and are still with you, or have you decided to implement a new type of policy, or have you decided COVID is over, we don't want that anymore?

Let's have a look at the results then. So 36% are saying yes, they do have a policy, which is higher than I thought it was going to be, and 64% saying no. Is that what you expected there, Seamus?

Seamus:  Yeah, I'm surprised and agree with you as well, Christine, that it's as high as 36%. I think a lot of workplaces certainly will have absent policy and procedure in place, but it's just covering off in that particular point around if you are sick and attending the workplace, particularly coming off the back of COVID.

And probably the number is as high as 36% on the basis that we've been dealing with this specific issue and it has been sort of an issue that's been top of the heap, really, from the pandemic started in 2020.

So, yeah, it is higher, but I'm not altogether surprised given that there would've been a real fear around if people were continuing to work in the workplace during COVID and weren't working at home, or if there was rotas up and there was maybe reduced numbers in the workplace, that everybody would've been clear that if you weren't feeling well, don't attend work.

Christine:  Yeah, it's become a lot more socially acceptable to kind of be coughing and sneezing in public now, isn't it? It's definitely changed us.

Let's have a look at the second pool then when you're ready, Maria. Okay. So are there obligatory days throughout the year which your employees must take off as the office is shut? For example, over Christmas or the July holidays. Yes or no?

So this is just kind of dealing with our second topic about happy holiday requests. The New Year is here. So let's have a look at those results. Seventy-nine per cent are saying yes, there are those obligatory days. I don't think I'm too surprised by that. I think, certainly, Legal-Island during Christmas and New Year . . . we've all to keep a few days to be off then. What do you reckon there, Seamus?

Seamus:  Yeah, similar to what I was expecting. I think that we're all working now with the advantage of certain closure days, and the benefit, I think, that we all find in those is that you maybe do get a bit more respite if your place of work is actually closed because you mightn't get calls and emails and important matters happening during those days whenever you're off regularly, which can happen. But yeah, it's similar.

And I think particularly in January, for the likes of hospitality industry and stuff like that, a lot of . . . And I see it seems to be very prevalent this year, that a lot of those sorts of businesses have either decided to close for the month of January, or they're closing part of the week during January just because they're worried that they don't have the trade. And maybe the cost of heating and light and fuel and things like that has maybe pushed that on.

But there'll be certain steps, obviously, that the employer has to take around notifying staff that there'll be certain days in the year that they will be required to use their holidays because the business won't be open or trading.

And there is an ability, certainly, within the legislation for the employer to do that, but it is around making sure that you give adequate notice and certainly, to keep a happy workforce, that you're not surprising staff with those sudden days that you're going to have to use holidays, in case the members of staff have already planned throughout the year what their leave is going to be.

Christine:  Yeah. Brilliant. Thank you, Seamus. And then just our last poll here is for us to find out a wee bit more about how you run your annual leave system. So is it a first come, first served, every person for themselves? Do you have popular days, kind of ring-fence, popular days have their own window to request? Or you could have a rota system for popular days, or your request goes to the line manager and they resolve the conflicts, the lucky people that they are.

And so let's hear your thoughts on that. Give that a minute. There we go. So first come first served, 31% is a bit lower than I was expecting. And then 64%, so a lot of reliance on the line managers resolving those issues, Seamus.

Seamus:  Yeah, the poor HR manager or line manager that has to deal with all those conflicts. But it's interesting from the point of view I suppose . . . Whenever I was giving this some consideration, I suppose it really is down to making sure that you do have a clear policy and procedure in order to avoid those conflicts arising.

And such a high number there at 64%. Hopefully this will be of some use then to the listeners, that they can maybe look at how to avoid those conflicts arising and maybe have that set out in a clear policy and procedure as to how that's going to work.

Inevitably, those conflicts will arise because you'll always get employees that ring-fence their own holidays at the start of every year. They're the ones that take the same holidays every year, and they don't have any flexibility or they don't show any flexibility to the frustration of their colleagues.

And it only takes the one year that a colleague has a certain event, maybe a wedding, that is locally or far away, and you're appealing to the other employees' better nature. And so that's where the good old conflicts can arise in relation to it.

And ultimately, that's right, you do need to have somebody there to make those decisions. But if you have clear policy and procedure, hopefully there's a way that . . . It's about managing expectations, really, and making sure that the relationships are protected.

Christine:  Yeah. I think really when you think about both topics we're talking about today, it is office-etiquette-related, how not to annoy your colleagues, don't use their mug, and certainly don't pick the day of their wedding off and leave if they need it.

So let's have a look then at our first topic, the office etiquette during flu season. So COVID-19 is on the rise, flu season is upon us, and there are numerous bugs during the rounds in schools across the country. So how can you keep a healthy workforce without ruffling legal feathers?

So I suppose during COVID, one of the big questions that we dealt with a couple of times in this webinar, Seamus, was around masks. We were starting to see people refusing to wear masks, other people insisting that other people wear masks. Out and about now in shops and stuff, you do see people starting to wear them again at this time of year. So can I ask my workforce to start wearing masks if they have the sniffles?

Seamus:  Well, I think it all goes back to the sort of famous approach of you need a reasonable approach. People say, "Well, what is a reasonable approach in relation to it?" But look, I see it in my own office here that there definitely has been . . . in and around December time, there have been those colleagues that have been coming into work coughing, spluttering, not well, but coming in. And it does make everybody else in the office uneasy.

And we're coming off the back of the pandemic, and if people are carers or live with elderly folk, maybe live with people with underlying conditions and things like that, it can be a real source of stress and pressure for those individuals.

But at the same time, we have the sort of government view, which has been clear. I mean, from 14 October 2022, the legal restrictions around COVID-19 have been brought to an end in Northern Ireland. And that's including any sort of statutory requirement that we all thought that we had to do, that we actually turned out that we didn't have to do, of wearing a facemask.

But I think that the majority of people do take a sensible approach in relation to these. And certainly, I've noticed as well that . . . you notice during the winter here that the people are wearing facemasks more.

I think it's very much dependent upon the type of working environment that you're in, and I think that that absolutely has to have an impact upon any decision by an employer to ask someone to wear a facemask.

But we have come away from that. And I think the general position has been that if there is someone that is coming into work unwell, the first question that you ask is, "Have you taken a COVID test?" And the usual response is, "Yes, of course I have, and I'm fine".

But it's even at the point now where we know that there are very bad flus out there. I noticed there that the media were reporting that in relation to our health crisis at the minute, the majority of beds that are being taken up are through flus more so than COVID. So you can't ignore the fact that the flu is also a . . . it's problematic. It spreads. It's contagious. And there could be others in the office that are concerned about that.

I think when it comes down to it, the reality of the situation is that the employer will have to provide a safe working environment for their staff. And in order to get to the place where you're satisfied that there's a safe working environment, you need to look at risk assessments.

We're all very sort of conscious at the minute. We're in the height of flu season. I think recently they said that the numbers are still continuing to increase, and they will do maybe for the next week or two before it starts to subside. We have the issues around COVID. And then we're really conscious of all the pressures that we have in the NHS. We've these on-going strikes, and we have our medical staff striking and ambulance staff and things like that.

Really, everybody wants to avoid getting sick because we're all worried about the fact that if we do get sick, is there a proper way for us to be looked after?

When it comes down to it, I think it's really important that any employer does look at a risk assessment in relation to sickness. Really important that you do have a policy and procedure in place as to how that is going to be dealt with.

You could absolutely face problems if an individual comes into work unwell and they're sent home, yet there's somebody else in the office that is unwell and they're not sent home. And that might be due to work priorities rather than personality issues, but the consistency point is really important, and you don't want a situation arising where one employee is feeling that they're being treated differently to another employee.

So I think the approach is that there isn't a legal requirement any longer in relation to wearing a facemask or a face covering. It's ultimately for the employer to decide on whether they want to mandate the wearing of facemasks by employees and encourage their use, whether or not they want to remain silent on the matter. But I think it has to come back to looking at the risk and what the assessment is.

And the approach will definitely differ from business to business, and it will depend on various factors, whether you're customer-facing, whether you are working in a tight-knit manner, whether you're working closely with other individuals, or whether it is the fact that your office or your place of work is working hybridly and everybody is spaced out and the risk is lessened from that point of view.

But it very much, again, just depends on the working environment. And I think also that we have to bear in mind that the employer does have a legal requirement to provide safe workplace, and there's a general duty of care to not only your employees, but your customers or clients that might be attending your place of work also.

So I think if ultimately the employer does think that it's a reasonable step that facemasks or coverings should be brought back in, you're going back to your risk assessment and you're justifying your position on that basis.

The other issue is that if you have somebody coming into work with the sniffles and you say, "Well, look, I'm going to require you to wear a face covering for the next week, or until this clears up", that could be a very difficult position for that individual employee. They could feel that they are being marked out, that they're being individualised. And it's very apparent because you've got a facemask on. And there are risks of discrimination.

There is a risk of discrimination, and it's back to those sorts of things, Christine, that we would've talked about previously. If somebody is exempt from wearing a facemask or if they have other conditions or a legitimate reason for not wearing a facemask as well, if they've respiratory disorders and things like that.

And it's getting back into that whole threshold again of "Are we across the line? Is it reasonable for me to ask this question? Do they have to provide me with the information about their medical conditions?" It's back to all that issue.

I suppose the difficulty that we have is that the government guidance is there's no requirement and there's no strict advice. Now, certainly, you do see in media that there is advice that's saying if you're in a crowded space, wear a facemask. If you are feeling unwell or you're leaving the house and going out and you're not well, wear a facemask and things like that. But again, it's just in that employment context and in that environment.

And I suppose the other side of it as well is that employers . . . Culturally, I think we have . . . I think you mentioned it just at the start of the webinar there. There has been a move away from this fear of "I can't not go into work because I'm not feeling well. I have to show that I'm dedicated and that I'm a good and loyal employee".

I think the pandemic has certainly assisted in that. We've moved away from that ability and we're now more focussed on health and wellbeing and that sort of sensible approach of, "Look, if you're not well, don't feel the need that you have to come in".

I accept that it doesn't happen in every single job because some jobs you have to actually be there to do the physical work, but we do have the ability and employers should be flexible in not sense of saying, "Well, look, if you're unwell, but you still feel that you're fit to work, how about working from home for the next four or five days?" and those sort of sensible approaches that could be taken.

I think in a sort of . . . I don't want to use the word post-COVID world because we know that it's still very much here, but where the load is lightened in relation to COVID, if I put it that way, I think it is more difficult for an employer to enforce and justify the wearing of a facemask, particularly for an individual.

But there are, of course, other industries where you would wear a facemask as a matter of course. Maybe if you're working with food preparation and in healthcare settings and things like that anyway.

But I think where the assessment needs to be made is if somebody comes into work, they're unwell, and there's a risk that they're contagious with flu or those sorts of bad respiratory disorders, you could take a sensible approach. And as long as that's openly explained to the employee to say, "Look, listen, it's not that we don't want you here because you're sick, but we have a business to protect. And in that, what we don't want is you coming in and infecting other people as well and putting the business at risk". This is the more sensible approach to take in order to deal with it.

Christine:  Yeah, I was going to say . . . It's kind of coming to mind, "Should guidance be issued?" So our recommendation for how you should behave should you have coughs and colds is, "Work from home if you can. That would be appreciated". Would that be kind of the more softly-softly approach to take, I suppose?

Seamus:  Yeah, I think so. Look, even I have noticed myself that we've had individuals that have had very bad flus, have had COVID and said that the flu that they've had is much worse, and that either they're not well enough to come into work or they want the ability just to be able to work from home.

But I think that if there is some form of written procedure in relation to that, where it's very clear, I think that you can't go wrong with that.

Obviously, you always need to have a little bit of flexibility with it. But I think where it's written down and it's clear . . . Again, it always comes back to good communication, providing an understanding as to why those decisions have been arrived at, is the best way in order to proceed.

And it's backed as well. I mean, the tips in relation to this and the sort of walkaway points are to keep up your hygiene processes at work. Make sure there's hand sanitiser. Make sure people are washing their hands. Have your signs up, even if you've decided just to put them up for the winter until the clocks change again at the end of March or something like that. Have your signage up in your bathrooms about hand-washing, and try to maintain that social distancing aspect.

I think, for most offices, that is a very realistic thing to do because of the fact that they're hybrid working. When it comes to maybe if you're working in a factory or manufacturing, it becomes more difficult to do that. And rather than it being a whole reintroduction of pandemic-style of working, it's an easier way to try to work it across that way.

But again, just be clear with employees. Educate them about what the position is in relation to how if they're feeling unwell or they're sick at work, what those next steps are and what they would look like.

Christine:  Yeah. Brilliant. We've got some questions coming in, so please do keep dropping them into the question box, everybody. So really, the question we have is around somebody coming into work not looking very well. So we've got a couple of different questions coming out of that scenario.

So I suppose if somebody is looking like death warmed up on the shop floor or whatever, and you don't think that they're able to function properly, you would be able to go to them and say, "Listen, I think you should probably go home for a rest".

Now, I suppose, can you talk us through the best process for that? And then I've got a few follow-ups just about pay and stuff as well, if we could break it down like that.

Seamus:  Absolutely, any employee that attends for work has to be fit to work and to do their job. And where they're clearly struggling or where there is an issue with maybe other colleagues complaining or even customers complaining . . . There should always be that open line of communication to have that discussion with a member of staff. Even from a welfare point, it's important that that discussion does take place.

It's back to some of the stuff that we did see during COVID as well, where somebody just simply feels they can't afford not to be at work, where they need to work in order to earn their money. And you will always get those employees in every workplace that will always come to work even if they're clearly unwell. You'll always get those ones that are very dedicated. But it's about explaining, I think, that that's not the best route.

Where somebody clearly is unwell and unfit to work, you're entitled to say that you need to send them home, or that they're not going to be able to stay for the day.

So there has to be that reservation. And again, that's an assessment that the employer needs to do. Like every other bit of good advice, it's important that if there are those decisions being made, there's some form of note that is taken, or where the employee is sent home, that that's followed up in writing if it's likely that they're going to be off for a period of time.

And it's similar, Christine, to what you would see sometimes where there is maybe an employee that's having that not-so-visible elements of being unwell and maybe mental health issues. I can think of lots of times where I've had to provide advices to clients of mine where managers or HR or owners have phoned and said, "Look, this person is clearly not well, and there may be a risk to themselves or a risk to others here in the workplace. What can I do in relation to the illness?"

There's always that sensitivity around dealing with it appropriately. Those decisions are sometimes hard to make, but they're important decisions to be made.

So similarly, whenever you have somebody coming into work with those visible signs, whether they're physically not looking at all well, it's important that those discussions do take place, but that you do it with an element of sensitivity and always with that aspect of explaining to them the difficulties that their presence is going to pose for the business.

Christine:  And so they've made it to lunchtime, and you've asked them to go home. Do they get paid for that day? Do they get paid to lunchtime? What's the scenario there?

Seamus:  Well, again, really important that you have a clear policy on sick leave absence and payment that will set out the answer to those questions, and also that the contract of employment is clear about that. So you're falling back onto your written documents whenever you're in these scenarios, because they're difficult and they can be tricky.

But the general position is where you attend work and where you've worked, you're entitled to receive payment in relation to the work that you've done. So if you have an employee that comes in and they make it to lunchtime, the reality is they're entitled to their payment up to the point where they're unfit or unable to do any further work.

There isn't anything in the legislation that says that you have to pay them for the remainder of the day. Or even if they came in for an hour in the morning and you're in a position whereby you're having to send them home, it can be difficult in some jobs to work out what the entitlement would be there.

But usually, the employer will take a discretionary approach, and where they have come into work, usually what I would see is the employer will say, "Look, we'll pay them for that day". Or if they've made it to a half-day, they will pay them for the half-day that they worked.

But to be clear, where the employee isn't fit to work any longer and they have to go home, there's no entitlement for them for payment in legislation or in law for payment for the remainder of that day. But again, you definitely need to go back and check your policy and your contract in case that it says something different in relation to it.

So I think definitely the policy needs to set out clearly what the rules are and, again, that there are no surprises for the employee. I think there's always an element that you don't want to ruffle feathers among your staff in relation to motivation.

It is at the discretion there for the employer to make the payment if the person has attended to work and they've done so in good faith. They've come into work for the day and they just haven't been able to do it. But where they're sent home, the strict position is that if they're unfit to work, they don't need to be paid in relation to that.

So I think in general if you have an employee or you have a difficult decision to make in relation to an employee about whether you feel that they're fit or not . . . And you might get an argument on your hands where they insist that they are fit and able to work. But as long as you're able to justify your decision, and again, that has to be done through the risk assessment and a written record of it.

And then whenever they are sent home, I think it's important that they're given information. If that's a source of stress or concern for them, they're given information about what their entitlement will be to payment going forward.

Christine:  And how does that feed into a statutory sick pay, Seamus? Would that day be counted as their first waiting day, or would it be the day after? How would you go about calculating that?

Seamus:  Well, the position is then . . . So when it comes to statutory sick pay, you have to be sick for at least four days in a row, and that can include nonworking days. But you have to be sick for four days in a row in order to obtain statutory sick pay, and your statutory sick pay will commence on Day 4. So the first three days aren't payable.

And the reason behind that has always been that it avoids people just to want to sick day in. The Monday and Friday Club, as I always call them. It puts that element of longevity onto it to ensure that it is a genuine illness.

And our current rate in relation to statutory sick pay is now £99.35. I expect that that will probably go up again. April is usually the time the government revise it. And you get a general entitlement to statutory sick pay for a period of 28 weeks.

Generally and legally, there's no obligation to pay above and beyond statutory sick pay unless you have a company sick pay scheme. And again, that needs to be set out within your sickness absence policy and procedure, and that staff are clear in relation to the entitlement on it.

In relation to the entitlement to get sick pay, my understanding is that even if you attend work on the first day for a small amount of time, that day doesn't count because you've been in work. And then the clock starts to run from the following day, which covers off then in relation to your counting time, your period of incapacity as it's called, for statutory sick pay.

So even if you're in just for a very short period that they will not count towards the incapacity period, it'll be then the following days. But again, that's where the discretion is for the employer as to whether they will pay them for the day that they've come in, or whether they make a decision that that's not going to happen.

Christine:  We've got one final question before we kind of wrap this section up, Seamus. So we're being asked, "What is your view on a manager who's not a fan of working from home, but has the full ability to work remotely?" So it's somebody who's resisting working from home if they are ill, but okay to work. Could you insist that they do that because the infrastructure is in place?

Seamus:  I mean, you could do, yes. I think on the basis of doing your risk assessment, if you felt that their presence in work wasn't appropriate in the sense that they're not fit enough to be in work, or alternatively where their presence is putting the risk at others . . .

I mean, it would be similar to if you suspend a member of staff, you have to pay them during their period of suspension. You're not in these circumstances suspending the member of staff, but you're giving them an alternative where they can work from home.

And where they refuse that alternative, I think you're looking at the reasonableness of that decision for the employee, because they have the ability to work from home, and if they refuse to do it and you send them home, you might arrive at the conclusion that they weren't fit to be in work, and they're therefore not entitled to pay.

Where if they were at home and able to work while they were at home, even if it was for part of the day that they were able to do it, they would be entitled to payment in that sense.

Christine:  So really what I'm hearing from you, Seamus, on this session about sickness is it really comes back down to reasonableness, it really comes down to communication, and it comes down to having a good policy that sets out what the steps are in each given scenario. Would that be a good summary?

Seamus:  Yeah, absolutely. Look, you cannot forecast for every single problem in a written policy and procedure, but we know the general basics here, and you do avoid that conflict aspect horizon if you're consistent and it's written down. It's a big part of the battle.

Christine:  Yeah. Brilliant. Thanks very much, Seamus. Let's move on to our second topic, our happy holiday requests. So New Year brings lots of sickness, but it also brings the new holiday year, which is brilliant. But we get conflicting requests from employees who all want the same two weeks off in the summer, or they want to be off during their kids' school holidays to save on childcare. So we're going to talk about how you ensure a fair system for making requests.

When I was chatting to a friend about this topic, she told me about a former employer of hers that used to operate what I would describe as a "Hunger Games"-style system, where basically, they were told, "On this date, the whole holidays for the year are going to be released", and it was just, "May the odds be ever in your favour". And it caused a lot of problems in her workplace.

That doesn't sound like the ideal scenario. So, Seamus, how do you go about ensuring fairness here?

Seamus:  I mean, just the basics in relation to holidays is that all employees are legally entitled to a certain amount of holidays in the annual year, depending on whether you're full-time or part-time or what hours you work. You should always, again, have a policy and procedure in place about how the holiday process works.

And often, you'll see that employers will say that you can request holidays, but there are no guarantees that they'll be granted and it will depend upon the needs of the business. And it could be certain times of the year where the business is very busy and where holidays cannot be granted.

Again, that's within the rights of the employer to deal with that. But the key thing, Christine, is I think that it definitely needs to be properly communicated and clearly communicated to employees, and again, that you're managing expectations.

So there's the ability for the employer to refuse holidays, dependent on their business needs. But there are no specific laws that cover how to manage or prioritise leave requests. That's completely a matter for the employer.

And it's a headache for employers when they're trying to maintain a fair system, because we always will have those couple of employees that are sharp as a tack when it comes to the holidays. They get the diary out over the Christmas holiday and they decide what their holidays are going to be.

Januarys are a really big time for people to book their summer holiday. We're encouraged to do it. All the adverts come on the TV just after Christmas day. And it's important as well that employees are clear that just because they put a request in that it won't necessarily be granted.

And they shouldn't book holidays without having authority that they've got the time off, first of all. There's always that problem that arises for people losing deposits and they'll say, "But I've booked the holiday. I've paid for it". And it can have a really damaging impact upon the relationship on both sides when it comes to the trust and confidence that that we have.

So my view is always that you should have a clear annual leave policy in place, and the types of things that you want to be putting into that annual leave policy are, "Are there restrictions about when employees can and can't take leave?"

In the legal world, there's always that aspect of . . . We don't really get a huge benefit of it, Christine, as employment lawyers, but it was always that thing where the County Court and High Court, where the courts closed over the summer. And I remember whenever I started, it was always, "Use your holidays in the summer and don't use them in term time", because that's whenever the business is most busy.

Christine:  Yeah.

Seamus:  Those were the sort of set dates that you tended to work from in that sense.

But obviously, every business is different. If you're in hospitality, your Christmas period, your summer periods are all very busy, and you might put restrictions around that.

Equally, you might say, "We're going to enforce a closure in January and we're going to do our maintenance and our repairs during that period as well, so we have a reduced need for staff. We do need some staff, so you all can't have it off". It has to be that sort of open communication.

So restrictions about when you can and can't take leave, and details as well, I think, about how many staff can take leave at the same time. The employer needs to work out, on a minimum basis, what staff it needs in order to keep the business going.

So maybe if you're working within a department of 10 people, the employer might say, "Well, look, we can't have any more than three people off at a time to keep the business going on and to make sure that there isn't too much pressure put on other team members during an absence". So that's important as well.

And particularly around Christmastime, you'll often hear, "Well, we'll run the skeleton staff, but this is what we need in respect of our skeleton staff".

And then the other really important one is the amount of holiday time that can be taken at a time. You will get those requests where people will say, "Listen, I would really like to do a big trip this year. I would like three weeks off in July." And the employer might say, "Our policy is . . ."

You'll often see that you can't have any more than two weeks off, or 10 working days off, at a time without making a special request and for that to be carefully considered before it can be granted.

Particularly if people are getting married, often there will be a policy that will say, "If you're getting married, you get an additional so many days". And we all know the boundaries can be pushed out in relation to that as well. So, again, make sure that these things are clearly written down and contained within the policy and procedure.

And then again, what is the procedure for booking leave? How do you book your leave? Do you go the day before and say, "I'm taking tomorrow off", or is there a form that you have to complete in respect of your request? Does that need to be submitted, and does it have to be signed off by your line manager and provided back to you before the leave is granted? So it's looking at the procedures in place for granting that leave.

And then I think another one is just under what circumstances may leave be refused? The business might give an indication of those sorts of circumstances when leave will not be reasonable, where it can't be provided for. And again, that might be during those very busy periods over when the business needs everybody's shoulder to the wheel.

Again, what you're doing here is you're trying to avoid that disappointment. You're trying to avoid the difficulties that arise around the answer when it's no. And if you can refer them back to the policy and say, "Well, look, this is what the policy says and this is what we have to work through, and we apply that consistently".

And then this issue about whether holidays are approved on a first come, first served basis, that is a really tricky one because on face value it's fair, but again, you have those employees that are very quick and sharp to it.

We were talking there specifically about this aspect where employers will say, "Well, no, we don't deal with holidays in the first week in January because not everybody is back to work that week".

And I think we were just having a conversation with Maria about that as well, where you were saying we don't do it that way because everybody doesn't come back the first week, and that's not fair, because those that don't come back then will miss the opportunity to book their leave.

And I think the other thing is just that aspect of exceptions. What are the exceptions, and what are the exceptions to the rules that are there? What are the emergency circumstances that we would permit holidays outside of our policy and procedure? Is it because there are family weddings that are local or that are far away? Or is it because holidays need to be used for other events that are taking place that we wouldn't necessarily treat as holidays, but the person would like to use them as holidays in order to ensure that they've been paid during that period?

So there are lots of things to cover off, but I think the holiday policy needs to be in place and needs to be clear. And if conflict arises, that's what you're reverting back to.

But I think that this idea of the first come, first served is a really interesting one. And as you say, it could be warfare for holidays when it comes down to this.

And I think in giving it some consideration and thinking about it, there are advantages to that first come, first serve process. It's a system, it's a policy, it's easy to set up, everybody knows about it, and you just have to be clear enough. And it also encourages everybody to plan their holiday year in advance, which helps the business plan going forward as well. It gives prioritisation, it's simplistic, and it's transparent, and it allows the employees the chance to request leave if there are certain periods where they want leave or where they traditionally take leave and things like that.

Many people just consider it to be fair. It's first come, first serve. That's a fair way of looking at it. But it does have its downside as well. And two big disadvantages, I think, are that for those employees that can't make their plans in advance, maybe they're carers or maybe they are waiting on certain things happening, they lose out because they don't have the ability to plan that far ahead.

Certainly, if your wife or your husband or your partner works in educational sectors, they get a broad range during the summer, but very limited outside of that as well as to what they can take. So that can be difficult.

And we all know of those employees who are married to a teacher or their partner is a teacher, and they can only take their holidays during those sorts of . . . Halloween, Easter, those sorts of things that happen.

But you'll undoubtedly always get one or two employees who submit their request on the first day. They'll do it every year. They'll book up all of the popular days off at the start of the year and they'll leave their colleagues with the scraps to pick up in relation to what's left.

And that can be really difficult in terms of managing relationships in the office as well. It does damage it and it can create issues between staff, whereby it builds up issues.

But look, it's a difficult one to manage, and you can't be seen to be giving preference to one person over another. I think there has to be a consistent approach with it.

Christine:  Yeah, so I suppose really the message is first come, first serve is in theory fair, but you do need everyone to play the game. So it's something to keep an eye on really, isn't it?

Seamus:  Yeah.

Christine:  So if you're requiring people to save days to take off between Christmas and New Year because you're closing, or over the July fortnight, there's a rule about notice for that, isn't there, Seamus? Can you take us through that?

Seamus:  Yes, you do. So, essentially, if you're going to close for a period of time, you have to provide double the notice of the period that you're essentially closing for, is the general rule of thumb.

Some businesses will have traditional periods where they always take off. I know that there are certain solicitor firms that close the July week, and they've always done that, and they probably always will do that. But the employees will be familiar with that and know about that.

And I suppose for any new employees that that information has been shared with them at their induction or whenever they start so that they're clear about it, and that they know then what other days they've got left throughout the year in terms of managing their leave also.

But the general rule there is the notice should be double the time. So if you're intending to close for a week, you provide two weeks' notice in advance of that. But ideally . . .

Christine:  Well . . . Sorry, Seamus. Go ahead. I'll let you finish.

Seamus:  But ideally, you want to give as much notice as possible in relation to that.

Christine:  I was just interrupting there, Seamus, because you touched on a point that we have a question on. So we've got somebody saying that staffers are very reluctant to book holidays and end up with loads of days left at the end of the year. So is it the manager's job to make sure they take their holidays, or does that just fall on them and if you don't take them, well, there you go?

Seamus:  Look, there are just so many issues. I mean, we know that we're waiting on our big decision coming from Agnew, as well, in relation to holidays. We had the Supreme Court hearing back in December. So we're waiting on our decision. And I have no doubt if we get the decision this year, Christine, that you and I will be dissecting that in our webinars.

But there is that real problem as well that happens where you get the reluctant employee that doesn't book their days off and you get up to the . . . If your holidays' year runs from January to December and you get to October and it's a real panic about the holidays . . . Traditionally, it's always the same individuals that will do that. But you can manage that throughout the year by saying to the employee that they need to use their holidays during that year.

And is there a specific reason as to why they haven't used any to date? That needs to be accommodated during the year to make sure that they get the benefit of their holidays.

Don't forget that the purpose of the holidays is to make sure that there is time away from work, that you have rest and relaxation, and that you're not going to end up sick because of all of the hours you're working. So there's a welfare issue there that has to be tied in also with that.

And what you want to do is encourage the employee to use their leave, and to do so in a way that assists the business throughout the year as well. So if there are quiet times for the business, you can say, "This is a good time for you to take holidays. And it actually means that when you go away, when you come back, you won't have a huge big workload waiting on you because it's a good time to do it".

You can't dictate, but just remember that the strength is always in the employer's hand because the employer has to approve the holidays. And you do have an ability to decline, provided that you can justify that on a business reason, of course.

So I think encouragement. And you still hear about people taking their winter week and their summer fortnight and those sorts of traditional ways of taking holidays. A lot of that still is threaded out through a lot of businesses, where they will say, "Your winter week, you'll have to take that sometime in December, January, February. Your spring week, your summer fortnight, or whatever it is", and build it in that way also.

Christine:  There's someone suggesting a solution. I'm wondering what you think about it. Can you ask employees to have a certain amount of holidays booked by a date throughout the year, i.e. one week each quarter? And if they don't do that, can you allocate them holidays?

Seamus:  Well, you just need to be careful. I think that definitely the case law has moved, and certainly the European Directives, the holidays are more and more coveted. They're protected more. And to dictate when an employee should use their leave, it can create difficulties in itself because the employee may simply say, "Look, I don't want to take my holidays then". And sometimes they just simply don't like being dictated to.

So I would sort of discourage, from a relationship perspective, telling people when they have to take their holidays. Ultimately, you do have some muscle on the bone in relation to that because the employer ultimately controls when the holidays can be taken when the requests are made.

But certainly, I would encourage that there would be open communication about that, and if that works best for the business, that you encourage the employees to use their holidays that way,

Christine: Seamus, we have run over, not surprisingly, because of the topics we're considering. But I should mention that next week on Thursday, I'll be talking to Mark McAllister of the LRA in a webinar, and he's going to be looking into his crystal ball about Agnew. I'm certainly very excited about it in the geekiest way possible. I can't believe we're going to get an answer. And he's also going to talk about the Harpur Trust case as well, which obviously deals with holidays as well.

I noticed today in the news, the Westminster government have actually opened a consultation on the outcome of Harpur Trust. So it will be useful if as many people as possible feed into that from HR and employment law backgrounds. I think they're very quick off the mark to try and change this piece of case law, and it always makes me suspicious when governments get up to that. So let's all get involved in the consultation.

But we have overrun. Sorry, everyone, but we just got very involved in that discussion. If you look on your screen now, you'll see all about Legal-Island. We've got our great Employment Law Hub, which covers all the case law.

We've got a couple of conferences coming up soon, a Cost-of-Living Crisis one at the end of February there, and then we've got Productivity in a Blended and Hybrid Working Environment.

And we've got a new Social Media in the Workplace eLearning module and we've got a new ESG eLearning as well. Seamus and I will be talking about ESG next month in Employment Law at 11, which is on 3 February, I believe, Friday the 3rd.

You can also find us on podcasts wherever you find your podcasts, Spotify, Amazon, or Apple. So look out for us there if you want to catch up.

Seamus and I are also on LinkedIn, so please drop us a line and connect to us.

But thank you all very much for coming along. Thank you, Seamus, for doing this today. It's always enjoyable.

Seamus:  Thank you.

Christine:  We will see you again next month. Thanks, everyone.

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This article is correct at 13/01/2023
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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