Senior solicitor Andrea Corr, in our Employment Law team, answers a series of common Employment Law and HR related questions.
I have an employee who never takes any holiday. Am I obliged to make them take holiday?
Whilst employers are required to provide employees with paid annual leave each year, there is not (strictly) an obligation to make sure than an employee takes that paid leave each year. It is however good practice to do so as, if leave accrues, employees may then expect to carry it forward to later years and / or seek to be paid for it upon termination.
I have a member of staff who wishes to carry over an entire holiday year’s entitlement. Am I obliged to let them do so?
It depends – in certain circumstances you may be required to allow them to carry over up to 4 weeks holiday and in more limited circumstances they may be entitled to carry over an entire holiday year’s entitlement.
I have an employee who is on unpaid sick leave as he has exhausted all his sickness entitlement. Is he still entitled to annual leave for this period?
Yes, they are entitled to paid annual leave each year and should be encouraged to take it and be paid for it.
Are staff entitled to time off on a Bank Holiday by law?
No. Although Christmas Day and Good Friday have been holidays for so long that they are generally regarded as common law holidays. The question of entitlement to Bank Holidays is a matter for the employment contract.
Are staff entitled to pay for a Bank Holiday by law?
No. That is also a matter for the employment contract.
Do I have to give my employees a day off with pay for the Coronation of King Charles III.
Only if you wish to! However, most employers will choose to do so.
Am I obliged to give my employees statutory payments such as Statutory Sick Pay?
Yes, if they meet the relevant criteria. If you fail to do so then they may complain to the Statutory Payment Dispute Unit of HMRC who may take enforcement action against you.
I have an employee who is on unpaid sick leave and is to be dismissed as they are unable to return to work. Are they entitled to paid notice?
It depends. In certain circumstances the notice must be paid and in others it may be unpaid (although you are free to make it paid notice).
I have an employee who has worked for me for over 20 years. His contract of employment says one month’s notice on either side but he says that he is entitled to more notice. Is this true?
Yes. In this case the statutory minimum notice provisions override their contract of employment and mean that they are entitled to 12 weeks’ notice from their employer. However, they are only obliged to give you a month’s notice.
Are all payments given in lieu of notice subject to tax and NIC?
Yes. This has been the case since 6 April 2018.
I have invited an employee who has raised a grievance to a number of grievance meetings. However they fail to turn up each time. Am I required to keep rearranging the meeting?
No. it may be reasonable in some circumstances to make alternative arrangements.
I may have to dismiss an employee for a conduct related matter. They are a very difficult individual. How do I ensure a fair process?
Fair is defined as “whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee and shall be determined in accordance with the equity and substantial merits of the case” (S 98(4) Employment Rights Act).
That generally means that more is expected of a large corporate organisation than a smaller one. In addition, it will take into account the circumstances of the individual case.
What’s the difference between wrongful dismissal and unfair dismissal?
Wrongful dismissal is a common law claim about the failure to provide, or make a payment for, a period of notice. Unfair dismissal is a statutory claim that which includes whether or not the employer had a potentially fair reason for dismissal and whether or not the dismissal was fair in all the circumstances.
I was unfairly dismissed. The employer in my case is telling me that I should have accepted a lower paid job after my dismissal. Is this true?
Yes. Claimants are under a duty to mitigate their losses by seeking and / or accepting other paid work even if it is lower paid.
I have an employee who wishes to work right up until the day of the birth of her child. Is this possible?
Yes. If, however they become unwell with a pregnancy related illness after the 36th week of pregnancy their maternity leave will start automatically. Assuming that there is no pregnancy related illness then their maternity leave will start the day after the birth.
The same employee wishes to come back to work immediately after the birth of their child? Is this possible?
No, the employee is required to take two weeks Compulsory Maternity Leave immediately following the birth of the child (4 weeks if they work in a factory). However they are then free to return to work after that, without taking any other maternity leave, if they so wish.
I am making a number of redundancies at the moment. One of the employees is currently on maternity leave and states that they are entitled to consideration for any suitable vacancies in advance of others owing to her absence. Is this true?
Yes. It is set out in Regulation 10 of the Maternity and Parental Leave etc Regulations 1999.
One of my employee has asked for reasonable adjustments to their work routine to allow them to deal with the effects of a long standing medical condition. The other employees do not receive these adjustments - is this preferential treatment?
Yes and it is expressly provided for by the Equality Act 2010. The duty to make reasonable adjustments arises in respect of employees with a disability and there is no ability for employees without a disability to complain of less favourable treatment.
Am I entitled to read my employees’ emails?
Yes, providing that such monitoring is reasonable, although it would be good practice to advise them of this in either their employment contracts or a separate privacy notice.
Please remember that the answers above only provide a general overview and that matters will often depend on individual circumstances and the nature of the employment relationship.
Our specialist Employment Law team can provide advice on employment law matters.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
