Comments by Helen Abbott

Helen Abbott
Member - 31 posts

To respond to Mr Collins's question, an employer can decide when staff can take their unpaid tea breaks.

As Jayn Bond from Positive HR highlights, this tends to work best when there is a degree of negotiation over the timing, which should take business needs into consideration.

I hope this helps.

Helen Abbott
Member - 31 posts

I am assuming that you do not have a policy on restricting applications from ex-employees

Some organisations have restrictions in place following redundancy (say for six months) in a role which is similar to the previous one in terms of content, grade or location.

This is because re-employment within this period potentially leaves the individual and the organisation vulnerable to claims that the redundancy was unnecessary and as such may have tax and other implications. Such a claim is less likely where the role applied for is significantly different with regards content, grade or location.

As six months has elapsed since the redundancy, there is no reason why you should not consider rehiring your former employee.

Helen Abbott
Member - 31 posts

Hello Tony,

With regard to the law on maternity and flexible working requests,

your employee has a right to request a change of hours. This forms part of family friendly legislation introduced during April 2003 (section 47 of the Employment Act 2002).

Basically, the Act provides the right to employees with children under age 6 (or 18 if disabled) to make a written request to work reduced or flexible hours.

Employers must consider such requests seriously and can only refuse on specified business grounds. These may include:

i The burden of additional costs

ii A detrimental effect on the ability to meet customer demand

iii An inability to reorganise work among existing staff

iv An inability to recruit additional staff

v A detrimental impact on quality

vi A detrimental impact on performance

vii Insufficient work during the periods the employee proposes to work

Viii Planned structural changes

If refusal is made on other grounds, the employee may apply to an Employment Tribunal for remedy.

If refusing, the employer should offer an explanation and follow up in writing to avoid any misunderstandings or confusion.

If agreeing to changes, the employer should ensure the contract of employment is updated and emphasise that the change is temporary up the date of the child?s sixth birthday (or 18th if disabled).

I hope this is helpful. If you need any more help, please let me know.

Kind regards,

Helen Abbott

HR Consultant

Workplace Law Group

Helen Abbott
Member - 31 posts

Hello Joanna,

I agree with Philip and Martin's comments about absence.

If you decide to hold a return to work meeting with your employee, it would be worthwhile asking if her GP gave suitable advice/ medication and how this might affect future attendance and performance at work. However, it wouldn't be good practice to start disciplinary action at this stage if her absence record over the past 12 months has been acceptable.

However, it would be worthwhile considering an absence policy for your business. This will help you to treat absence in fair and consistent manner and give guidence when further action might be needed. I can give you help to draft an absence policy - just let me know.

With regard to absence, I have some return to work interview forms. These will give you guidence about what to ask when meeting with your employee. If you would like a copy, let me know and I will forward via email.

Kind regards,

Helen Abbott

Helen Abbott
Member - 31 posts

Hello Graeme

Many thanks for your question.

With regard to failure to give full contractual notice, you will only be required to give salary payments for actual days worked. If this was included in the previous month?s salary payment, then your salary obligations are extinguished. However, failure to pay for days worked could lead to a claim for unlawful deduction from wages.



If an employee leaves without working their contracted notice period this can cause business difficulties and significant costs. You can sue the employee for breach of contract but this is impractical and it might be difficult to assess the losses caused by the employee's breach.

You might like to consider the following clause for your contracts to deter such early leavers -

"If you leave without giving the proper notice we shall deduct a day's pay for each day not worked during the notice period from any final salary payment due to you. The amount deducted is a genuine attempt to assess our loss as a result of you leaving without giving the full notice".

I hope this is helpful.

Kind regards,

Helen Abbott

HR Consultant

Helen Abbott
Member - 31 posts

Hello Tony,

The main payouts in this situation are likely to be redundancy pay and Statutory Maternity Pay (SMP).

To be eligible for redundancy pay, your employee must have completed two years? continuous service. Pregnancy and eligibility for SMP should not affect entitlement to redundancy pay.

With regard to entitlement to maternity pay, if your employee has accrued 26 weeks? continuous service she will be entitled to SMP.

To claim this, she must have worked for some or all of the 15th week before the expected week of childbirth (EWC). However, deliberately making her redundant earlier to avoid paying SMP could result in a sex discrimination claim against the business (unlimited level of compensation) or a finding of unfair dismissal relating to her redundancy.

In these circumstances, it is very important to be open and clear about the reason for redundancy to avoid misunderstandings about the selection criteria. It is unlawful to select on grounds of pregnancy, taking of maternity leave etc. and any confusion about your intent may result in a possible claim against the business.

If making her redundant, it might be more practical to pay SMP in a lump sum.
To find out more about calculations of payments, you can contact the Inland Revenue employer helpline on: 0845 7143 143

I hope this is helpful.

Kind regards,

Helen Abbott

Helen Abbott
Member - 31 posts

I agree with the advice offered by Bozena. If you need any further help with your company's sickness policy, please contact us.

Kind regards,

Helen Abbott

Helen Abbott
Member - 31 posts

I agree with the findings of the TUC report. Dyslexic employees (and potential employees) can be judged unfairly, particularly if managers or supervisors know little about the disability and how to make adjustments to help the employee to cope. Common areas of discrimination include: recruitment and retention, promotion and transfers, training opportunities and dismissal.

Dyslexic people have an unusual balance of skills and often have higher than average levels of intelligence. They can be very gifted in some areas yet totally incongruous in others, causing stress and frustration to those who suffer from it.

Adjustments are often inexpensive and can be as simple as changing the layout of documents or taping recording important instructions.

Managers need to increase their awareness of dyslexia and be willing to make adjustments to help dyslexic employees to cope at work and avoid discrimination claims.

Helen Abbott
Member - 31 posts

Hello Joanna,

Your colleague may resign and claim Statutory Maternity Pay as long as she has worked for some part of the 15th week before the EWC. If she doesn?t, she will lose her entitlement to maternity pay.

Maternity payments will not start before the 11th week of EWC. If she resigns, the employer can choose to pay the Maternity Pay in a lump sum.

However, if she leaves to start a new job, she will lose her right to Maternity Pay from her current employer because responsibility for payment will pass to the new employer.

There is no other financial allowance that can be claimed.

I hope this is helpful.

Kind regards,

Helen Abbott

HR Consultant

Helen Abbott
Member - 31 posts

Hello Anne-Marie,

There is no legal entitlement to refund of annual leave if the employee falls ill during a period of annual leave unless stated otherwise in the contract of employment.

I hope this is helpful.

Kind regards,

Helen Abbott Chartered MCIPD

HR Consultant

Helen Abbott
Member - 31 posts

Hello Theresa,

Many thanks for your question.

Annual leave during the first year of employment is more risky but there are a few things you can do to reduce it.

As Mike highlights, you could deduct overpaid holiday from the final salary payment. However, this must be stated in the contract of employment before deductions are made. This is to avoid an unlawful deductions from wages claim.

As Bozena highlights, the employee has a statutory right to 4 weeks' paid annual leave. This should be paid at the time of taking the holiday and not delayed until he/ she returns to work.

Perhaps you could seek reassurance from the employee that he/ she is intending to return and ask why three weeks is needed. For future cases, you might like to consider altering your holiday policy to a maximum of two weeks on any occasion unless agreed otherwise with the line manager. This element of discretion will encourage discussion. If it is genuinely inconvenient other options can be explored - perhaps delaying the annual leave until a later date or taking it on two separate occasions (depending on the employee's plans).

The key is to be reasonable and maintain good communication and trust with your employee. Remember, you have the discretion to turn down a lengthy request. It is good practice to ask why it is needed, offer an explanation if you refuse and offer an alternative (or ask the employee to suggest alternatives).

I hope this is helpful.

Kind regards,

Helen Abbott
Member - 31 posts

Hello Jim,

Many thanks for your question.

As David says, it is certainly more practical for medical reports to go directly to the HR Department.

Your HR Manager will almost certainly have the experience and expertise to interpret the information into practical advice and action for the manager. For example, recommending reasonable adjustments in the case of a disability or advising that time off work is needed for treatment etc.

In my experience, the interpretation of the report into practical action is far more valuable to the manager than having access to the medical report. Of course, it is good practice for HR to discuss the report with the employee, including any courses of actions resulting from it.

As David highlights, it is reasonable to expect that some information is given to the manager, particularly if changes have to be made. For example, if time off work for treatment is needed, the manager will need to know duration, possible dates and frequency so s/he can plan cover for the absence. However, very sensitive or personal information should not be passed on.

Each particular case will have different factors and circumstances so only general guidelines can be offered. If you need further reassurance, it might be worthwhile having a chat with your HR Manager/ Officer about the procedure for medical reports and information within your workplace.

I hope this is helpful.

Kind regards,

Helen Abbott
Member - 31 posts

With regard to the response from Silas, perhaps you would not be so ?staggered and appalled? if you knew that the situation almost resulted in the death of a young female student earlier this year.

The employee in question was sound asleep and he failed to respond to her cries for help. Fortunately, she was found by a passer by and the emergency services alerted. I wonder how ?staggered and appalled? her parents would have been had she died as a result of the employee?s inability to carry out his duties?

Far from 'compounding an unhelpful stereotype', the question has to be asked; how far should an employers responsibilities extend with regard to depression? Assuming that reasonable adjustments have been tried, should a potential incapacity situation be allowed to continue until breaking point? For example, until a serious accident occurs or a loss of customers becomes evident.

Employers need to show a sense of empathy throughout the capability process and make genuine attempts to assist and consult with the employee. However, if performance improvements are not forthcoming and no suitable alternative employment is available, a line needs to be drawn. Why should a business suffer loss or detriment because an individual fails to recognise their inability to cope?

Whilst it would helpful for some smaller employers to get more involved in their employees? medical conditions, the suggestion for larger employers to advise on medication for complex mental health issues, particularly where medical specialists have been unsuccessful, is highly unrealistic.

Helen Abbott
Member - 31 posts

Hello Ann,

I recently undertook a survey of annual leave and found that the average for the private sector is 25 days (excluding public holidays).

I hope this is helpful.

Kind regards,

Helen Abbott

HR Consultant

Workplace Law

Helen Abbott
Member - 31 posts

Hello Peter,

If your staff are genuinely employees rather than casual workers and you deduct PAYE and Class 1 NICs from their pay, then you will have to pay them SSP if they satisfy the qualifying conditions.

However, if they are casual workers, then you do not. A casual worker is usually someone who works for an employer as and when they are required, but:

- they do not have to accept the work that is offered

- the person with the work does not have to offer it to them

If you are not sure whether you have to deduct Class 1 NICs from earnings, contact your local Inland Revenue office and ask for the Status Inspector.

I hope this is helpful.

Kind regards,

Helen Abbott

HR Consultant

Workplace Law Group

Helen Abbott
Member - 31 posts

In my experience, these medications have a negative effect on performance in the workplace. I have experienced employees falling asleep on duty, poor memory retention, slow reaction times and frequent mistakes despite remedial training. The demotivating effect this has on other employees is not to be underestimated.

Perhaps the worst situation I've experienced was an employee suffering from manic depression. His job involved responding to emergencies whilst alone on night duty. He medication caused him to fall sleep whilst on duty.

The employee in question chose to lie at interview when asked about disabilities and medication. He was subsquently removed from shift work and managed out using an incapacity procedure and observing the requirements of the Disability Discrimination Act.

Helen Abbott
Member - 31 posts

Hello Blossom,

Yes, you may withhold sick pay if your employee is failing to submit medical certificates. It is advisable to write to him and point out that you are planning to do this. Ask for backdated medical certificates to cover the complete period of his absence.

Incidentally, have you considered inviting him in for a discussion about his progress whilst on sick leave, with a view to returning to work? It is surprising how many employees become resentful and feel ?abandoned? whilst on long term sick leave. This makes it difficult to return to work and may extend the period of absence.

Regular contact is good practice and encourages the employee to return to work. As a rough rule of thumb, I suggest contact at 3 weeks, 8 weeks, 26 weeks and 52 weeks is appropriate.

Do you have an absence policy which provides adequate guidance relating to longer term absence? If not, Workplace Law can supply this together with absence management training for your management team. Please contact me for further details.

I hope this is helpful

Kind regards,

Helen Abbott Chartered MCIPD

HR Consultant

Workplace Law

Tel 0870 777 8881

Helen Abbott
Member - 31 posts

Hello Daniel,

Two years is certainly a long period to cover for sickness absence. Unfortunately, there is no right to a permanent senior level appointment if your colleague has been covering on an interim basis.

I expect that she has gained some valuable experience and would be in a good position to apply for a senior position, if vacancies are available. Has she discussed this possibility with the HR or Personnel Department and/ or her line manager?

You say that her salary was not affected. Does this mean that she was paid a Senior Manager?s salary whilst she was performing those duties and is still receiving that level of salary? Again, her employer may wish to increase responsibility or amend her duties if she is to keep it.

It would make sense to discuss this matter further with the HR/ Personnel department as I am uncertain what was agreed at the outset of this temporary arrangement.

I hope that this helps.

Regards,

Helen Abbott

HR Consultant

Workplace Law

Helen Abbott
Member - 31 posts

Dear Gary,

With regard to health and safety, it is a legal requirement to have an accident book with tear out pages, which should be kept in a secure location. Some accidents need to be reported under RIDDOR legislation. If you would like more advice on this, please let us know.

With regard to redundancy, I am uncertain how many redundancies you are making or how many continuous years? service your employee has. This will determine if you need to have a consultation period or how much (if any) redundancy pay he is entitled to. If he has less than 2 years service but more than 12 months, he may consider a claim for unfair dismissal.

You need to ensure that you are making him redundant for the right reasons. In this case, it will be because there is no continuing requirement for his skills. In addition, you will need to consider if there are any alternative jobs that he could do or if he could be retrained for a different type of work.

As the health and safety claim and redundancy issue are two entirely separate matters, then one should not have an adverse effect on the other. However, it is important to emphasis the reduced skill requirement so that this is not seen as a way of punishing him for the health and safety claim.

I hope that this helps.

Helen Abbott

HR Consultant