Comments by Kevin Thomas

Kevin Thomas
Member - 10 posts

I have just received the following from our HR Solicitors:
News
The EAT has held that a woman who was given advance notice of the unavailability of her childminder and stayed at home to look after her children had exercised her right to take time off to care for a dependant.

Implications
All employees have the right to take time off to care for a dependant in certain circumstances including when the arrangements for the care of a dependant are 'unexpectedly' disrupted.

In this case the EAT held that this can include where the employee has advance notice of the unavailability of childcare. Accordingly, employers will need to be aware that the scope for employees to be able to take time off from work has been widened.

Therefore, policies on employees taking time off should be reviewed to ensure that they meet this wider definition and employers should consider the circumstances of the employee and the availability of alternative childcare when faced with requests for time off to care for dependants.

Details
In the case of Royal Bank of Scotland v Harrison, the EAT considered the case of Ms Harrison, who was given two weeks notice by her regular child minder, that she would be unavailable on a specific date. Ms Harrison tried to make alternative arrangements for the care of her two young children but neither her husband or other child minders were able to assist. She therefore asked her employer (RBS) if she could take the day off to care for her children. One week later and only two days before the childminders absence, RBS then informed Ms Harrison that her request had been refused. Ms Harrison however took the day off to care for her children anyway and subsequently was disciplined by RBS for doing so. Ms Harrison brought a claim that she had been subjected to a detriment for taking the time off.

RBS argued that Ms Harrison was not covered by the statutory protection because she had advance notice of her child minders unavailability. However, the EAT disagreed and held that 'unexpected disruption' did not have a defined time attached to it nor did it exclude the situation where the employee learns of the disruption in advance.

In the EAT's view whether it is necessary for the employee to then take the time off will depend upon the facts of each case and the efforts the employee has taken to make alternative arrangements.

Kevin Thomas
Member - 10 posts

I must work for a wonderful employer, when I was taken to Hospital for the last week of my Holiday I was paid full wages and given back the Holiday I 'lost' by being in hospital. we have a sick benefit insurance scheme in place, if we are off for more than 7 days and produce a sick note we are paid full money. SSP is around 1/3 of a days pay and is only paid after 3 waiting days, so I think I would rather use my holiday at full pay rather than lose all that money.

Kevin Thomas
Member - 10 posts

How valued is the employee? If she has to return to work because she can't afford to stay home sick then as Anne said you need to look at your sick pay policy, there is an insurance policy available that will pay out for over 7 days sickness on production of a sick note. If the Doctor has signed her off for 4 weeks then you should not allow her to return to work regardless of her loss of pay, the Doctor (usually) knows what he is talking about. Your insurers might be a bit upset iof she comes back under a sick note then drops dead in your reception with another stroke. Then of course there is the HSE and RIDDOR reporting who tend to view a death at work pretty seriously, Police need to be informed as it would be a sudden death. Do you really want her to return to work before the Doctor says it is OK.....

Kevin Thomas
Member - 10 posts

Watch it with the free tea and coffe, the taxman could see it as benefit in kind and levy tax on it. I am afraid I joined the free range brigade after personally witnessing the conditions chickens were kept in. yes I do pay more for my chicken and eggs and am happy to do so. But that is a different argument.
The employee could now go to tribunal for constructive dissmissal due to the refusal to allow reasonable leave to care for a disabled mother, she would probably win.

Kevin Thomas
Member - 10 posts

First and most importantly - It is worth communicating with the border control and immigration department, they will give help and advice on employing migrant workers. There are checks which you can carry out on documents to ensure they are valid, from experience the forgeries are very good and are used to come in and out of the country by established illegal immigrants. As long as you carry out reasonable document checks you are unlikely to be prosecuted / fined (£10,000 per illegal immigrant) Some illegals arrive in the country on false EU documentation. Also we have discovered that production of a National Insurance card / number is not evidence of employment status for foreign nationals, they are forging these as well, the government department who collect NI contrbutions will not tell you if you are using a fake NI number, they are getting the money and don't check where it is coming from. Write a policy / procedure for employing migrant workers, make sure the HR department are aware of it and copy all documentation produced as evidence of identity and eligibility to work. To be PC you must carry out the same checks on all applicants even if they have a broad regional British accent.

Kevin Thomas
Member - 10 posts

It might be an idea to check into the SSP rules. If we are off work sick we must return to work (or be available for work) before we can go into our holiday. As far as I am aware this is not just a company policy. So I would assume that if you are on holiday and report sick you would have to return to work before you can continue with your holiday. Have I muddied the waters?

Kevin Thomas
Member - 10 posts

Have you included a clause in your employment contract relating to drinking or being under the influence of drugs while at work. However what would you do if she was under the influence of alcohol? Not a silly question, we include such a clause which also covers prescription drugs.

Kevin Thomas
Member - 10 posts

If he is still 'signed off' by the doctor you may be on a sticky wicket if he does any work at all. However before you ask him to work at home you would need to carry out a risk assessment of the home to ensure that the desk and equipment is suitable. (DSE Regs) Working from a laptop may well give him RSI which he can claim for as he was carrying out work for his employer, even though he is working from home. what hours are you expecting him to work and how do you know he is working and not on the WiFi link at his local pub. come to think of it, this working from home is beginning to sound attractive ....

Kevin Thomas
Member - 10 posts

I am also coming down on the side of the employee. If however you decide not to allow time off to care for a dependant you may well end up in the tribunal.
http://www.direct.gov.uk/en/Employment/Employees/Timeoffandholidays/DG_10026555
try this web site, it gives you the information in laymans terms